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342 U.S. 232
72 S.Ct. 257
96 L.Ed. 257
CARSON, Commissioner of Finance and Taxation for the State of Tennesseev.ROANE-ANDERSON CO. et al. CARSON, Commissioner of Finance and Taxation for the State of Tennessee v. CARBIDE & CARBON CHEMICALS CORP. et al.
Nos. 186 and 187.
Argued and Submitted Dec. 5, 1951.
Decided Jan. 7, 1952.
Mr. Allison B. Humphreys, Jr., Lebanon, Tenn., for petitioner.
Mr. Oscar H. Davis, Washington, D.C., for United States Intervenor-respondent.
Mr. S. Frank Fowler, Knoxville, Tenn., for respondents.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
The Retailers' Sales Tax Act of Tennessee, Tenn.Acts 1947, c. 3, imposes a sales tax on the sale of goods in Tennessee and a use tax on the use within the state of goods purchased elsewhere. Tennessee collected these taxes from respondents who paid them under protest and then brought these suits to recover them and to enjoin future collections. Two of the respondents are private companies who are contractors for the Atomic Energy Commission and who paid use taxes; two are merchants who paid sales taxes on sales to those contractors and who passed the taxes on to them. The use taxes and the sales taxes were on articles used by the contractors in the performance of their contracts with the Commission.
2
The Tennessee Supreme Court held by a divided vote, Carbide & Carbon Chemicals Corp. v. Carson, 192 Tenn. 150, 239 S.W.2d 27, that the challenged taxes, though not forbidden by the Constitution, were prohibited by § 9(b) of the Atomic Energy Act of 1946, 60 Stat. 765, 42 U.S.C. § 1809(b), 42 U.S.C.A. § 1809(b). The cases are here on certiorari. 342 U.S. 847, 72 S.Ct. 74.
3
Sec. 9(b) provides in part that 'The Commission, and the property, activities, and income of the Commission, are hereby expressly exempted from taxation in any manner or form by any State, county, municipality, or any subdivision thereof.' The constitutional power of Congress to protect any of its agencies from state taxation, Pittman v. Home Owners' Corporation, 308 U.S. 21, 60 S.Ct. 15, 84 L.Ed. 11; Federal Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 62 S.Ct. 1, 86 L.Ed. 65, has long been recognized as applying to those with whom it has made authorized contracts. See Thomson v. Pacific R. Co., 9 Wall. 579, 588—589, 19 L.Ed. 792; James v. Dravo Contracting Co., 302 U.S. 134, 160—161, 58 S.Ct. 208, 221, 82 L.Ed. 155. Certainly the policy behind the power of Congress to create tax immunities does not turn on the nature of the agency doing the work of the government. The power stems from the power to preserve and protect functions validly authorized, Pittman v. Home Owners' Corp., supra, 308 U.S. at page 33, 60 S.Ct. 18—the power to make all laws necessary and proper for carrying into execution the powers vested in the Congress. U.S.Const. Art. I, § 8, cl. 18. Hence if the present contracts which the respondent contractors have with the United States, and the performance thereunder, are 'activities' within the meaning of § 9(b) of the Act, the immunity is clear. Our view is that they are and that the judgments below must be affirmed.
4
Respondent Roane-Anderson manages the government-owned town of Oak Ridge, Tennessee; Carbide and Carbon Chemicals operates the Oak Ridge plants for the production of fissionable materials. Their contracts antedate the Atomic Energy Act of 1946, 42 U.S.C.A. § 1801 et seq., having been originally entered into with the Manhattan District of the Corps of Engineers. Pursuant to § 9(a) of the Act these contracts were transferred by Executive Order1 to the Commission. The question whether the Commission should be empowered to employ private contractors in performance of its functions or whether the Commission should itself be the entrepreneur was an issue of national policy much discussed and debated at the time the legislation was before the Congress. One measure, which had the backing of the War Department, would have authorized the Commission to lean heavily on private enterprise for performance of its functions.2 Another measure, originating in the Senate and after extensive revisions becoming the Atomic Energy Act of 1946, contained no provision authorizing the use of contractors to the extent here involved, required the Commission to produce its own fissionable materials in its own plants by its own employees, and directed the Commission to terminate contracts previously made for the production of fissionable materials.3 But that bill was materially altered so as to adopt as the national policy the use of 'management contracts for the operation of Government-owned plants so as to gain the full advantage of the skill and experience of American industry.'4 Accordingly § 4(c)(2) of the Act authorizes the Commission 'to make, or to continue in effect, contracts with persons obligating them to produce fissionable material in facilities owned by the Commission.' And § 9(a) authorizes the transfer to the Commission of all contracts concerning the production of fissionable material. The use of private contractors is therefore one of the ways in which the Commission is authorized to manage its affairs. Its activities may, in other words, be performed by it directly or through the agencies of private enterprise.
5
Congress uses the word 'activities' in various sections of the Act, and seems each time to give it a broad sweep. The Congressional or Joint Committee constituted under § 15 is directed to study 'the activities' of the Commission. The reports which the Commission is directed to submit to Congress pursuant to § 17 concern its 'activities.' Section 9(b) authorizes the Commission to make payments to state and local governments in lieu of property taxes in those areas 'in which the activities of the Commission are carried on and in which the Commission has acquired property' previously subject to local taxation. In none of these sections do we find any suggestion that 'activities' is used in a narrow sense to describe less than all of the functions of the Commission. The meaning of 'activities' as applied either to an individual or to a government agency may be broad enough to include what is done through independent contractors as well as through agents. Certainly where the pattern of conduct visualized by the Act is the use of independent contractors or agents from the field of private enterprise, the inference is strong that 'activities' means all authorized methods of performing the government function. We find no contrary evidence from the legislative history.
6
In view of this conclusion we find it unnecessary to reach the problems of implied constitutional immunity involved in James v. Dravo Contracting Co., supra, and State of Alabama v. King & Boozer, 314 U.S. 1, 62 S.Ct. 43, 86 L.Ed. 482.
7
Affirmed.
8
Mr. Justice BLACK took no part in the consideration or decision of this case.
1
Executive Order No. 9816, Dec. 31, 1946, 42 U.S.C.A. § 1802 note, 12 Fed.Reg. 37.
2
See H.R.Rep.No.1186, 79th Cong., 1st Sess.
3
See S.1717 reprinted in Hearings before the Senate Special Committee on Atomic Energy, 79th Cong., 2d Sess., pp. 1—9.
4
S.Rep.No.1211, 79th Cong., 2d Sess., p. 15.
| 78
|
342 U.S. 237
72 S.Ct. 235
96 L.Ed. 275
INTERNATIONAL LONGSHOREMEN'S & WAREHOUSEMEN'S UNION et al.v.JUNEAU SPRUCE CORP.
No. 280.
Argued Dec. 6, 1951.
Decided Jan. 7, 1952.
Messrs. Richard Gladsteen, Allan Brotsky, San Francisco, Cal., for petitioners.
Mr. Manley B. Strayer, Portland, Or., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
In the spring of 1947, respondent purchased certain properties for the manufacture of lumber, including a sawmill at Juneau, Alaska, and commenced operations. Shortly thereafter, the International Wood-workers of America requested negotiation of a contract with respondent, claiming representation of a majority of respondent's employees. A bargaining agreement was signed with that union on November 3, 1947.
2
Respondent decided to ship its lumber to ports in Canada and the United States and acquired barges for that purpose. Respondent's policy was to utilize its own employees to load its barges. In October, 1947, petitioner, Local 16 of the International Longshoremen's and Warehousemen's Union, asked that its men be allowed to load respondent's barges. This request was denied. The request was repeated the following spring and was again denied. Petitioner Local established a picket line at respondent's plant on April 10, 1948. Most of respondent's employees refused to cross the picket line and the mill shut down. The mill reopened on July 19, 1948, but picketing continued. Petitioner International notified its Canadian locals that respondent's products were unfair. Respondent was unable to unload its barges in Canada or Puget Sound due to the refusal of longshoremen to work respondent's vessels. On October 11, 1948, the mill again closed down due to lack of storage facilities to hold the accumulating lumber. Picketing was not discontinued until May 9, 1949.
3
On August 3, 1948, respondent filed a charge against Local 16 alleging violations of § 8(b)(4)(D) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947,1 61 Stat. 136, 141, 29 U.S.C. (Supp. II) §§ 151, 158, 29 U.S.C.A. §§ 151, 158, on the ground that the Local attempted to induce assignment of particular work to its members. Following a hearing pursuant to § 10(k) of the Act, 29 U.S.C.A. § 160(k), the National Labor Relations Board determined on April 1, 1949, that longshoremen represented by Local 16 were not entitled to the barge-loading work. 82 N.L.R.B. 650. In the meantime, respondent had filed suit for damages against both the Local and the International under § 303(a)(4) of the Labor Management Relations Act.2 Respondent asked, pursuant to an amended complaint, for damages from April 10, 1948, to April 27, 1949. After trial before a jury, respondent was awarded a judgment of $750,000 plus costs. The Court of Appeals for the Ninth Circuit affirmed. 189 F.2d 177. The case is here on certiorari. 342 U.S. 857, 72 S.Ct. 89.
4
First. This suit was brought in the District Court for the Territory of Alaska. And the question which lies at the threshold of the case is whether that court is a 'district court of the United States' within the meaning of § 303(b) of the Act.3 That court has the jurisdiction of district courts of the United States by the law which created it. 48 U.S.C. § 101, 48 U.S.C.A. § 101. Yet vesting it with that jurisdiction does not necessarily make it a district court for all the varied functions of the Judicial Code. See Reynolds v. United States, 98 U.S. 145, 154, 25 L.Ed. 244; McAllister v. United States, 141 U.S. 174, 11 S.Ct. 949, 35 L.Ed. 693; United States v. Burroughs, 289 U.S. 159; 163, 53 S.Ct. 574, 576, 77 L.Ed. 1096; Mookini v. United States, 303 U.S. 201, 205, 58 S.Ct. 543, 545, 82 L.Ed. 748. The words 'district court of the United States' commonly describe constitutional courts created under Article III of the Constitution, not the legislative courts which have long been the courts of the Territories.4 See Mookini v. United States, supra, 303 U.S. at page 205, 58 S.Ct. 545. But we think that in the context of this legislation they are used to describe courts which exercise the jurisdiction of district courts. The jurisdiction conferred by § 303(b)5 is made 'subject to the limitations and provisions of § 301'. Section 301 lifts the limitations governing district courts as respects the amount in controversy and the citizenship of the parties; it defines the capacity of labor unions to sue or be sued; it restricts the enforceability of a money judgment against a labor union to its assets; and it specifies the jurisdiction of a district court over a union and defines the service of process.6 Congress was here concerned with reshaping labor-management legal relations; and it was taking precise steps to declared and announced objectives. One of those was the elimination of obstacles to suits in the federal courts. It revised the jurisdictional requirements for suits in the district courts, requirements as applicable to the trial court as to any court which in the technical sense is a district court of the United States. The Act extends in its full sweep to Alaska as well as to the states and the other territories.7 The trial court is indeed the only court in Alaska to which recourse could be had. Even if it were not a 'district court' within the meaning of § 303(b), it plainly would be 'any other court' for purposes of that section. As such other court it might or might not have jurisdiction over this dispute depending on aspects of territorial law which we have not examined. But since Congress lifted the restrictive requirements which might preclude suit in courts having the district courts' jurisdiction, we think it is more consonant with the uniform, national policy of the Act to hold that those restrictions were lifted as respects all courts upon which the jurisdiction of a district court has been conferred. That reading of the Act does not, to be sure, take the words 'district court of the United States' in their historic, technical sense. But literalness is no sure touchstone of legislative purpose. The purpose here is more closely approximated, we believe, by giving the historic phrase a looser, more liberal meaning in the special context of this legislation.
5
Second. The main contention of petitioners in the case is that § 303(a)(4) read in light of § 8(b)(4)(D)8 renders illegal only such picketing as takes place after and in the face of a determination by the Board that the acts complained of were unfair labor practices. If that conclusion is warranted, there must be a reversal here since the damages reflected in the present judgment for the most part accrued prior to the decision of the Board, under § 10(k) of the Act,9 that petitioners had committed an unfair labor practice within the meaning of § 8(b)(4)(D).
6
Section 8(b)(4)(D) and § 303(a)(4) are substantially identical in the conduct condemned. Section 8(b)(4)(D) gives rise to an administrative finding;10 § 303 (a)(4), to a judgment for damages. The fact that the two sections have an identity of language and yet specify two different remedies is strong confirmation of our conclusion that the remedies provided were to be independent of each other. Certainly there is nothing in the language of § 303(a)(4) which makes its remedy dependent on any prior administrative determination that an unfair labor practice has been committed. Rather, the opposite seems to be true. For the jurisdictional disputes proscribed by § 303(a)(4) are rendered unlawful 'for the purposes of this section only,' thus setting apart for private redress, acts which might also be subjected to the administrative process. The fact that the Board must first attempt to resolve the dispute by means of a § 10(k) determination before it can move under § 10(b) and (c) for a cease and desist order11 is only a limitation on administrative power, as is the provision in § 10(k) that upon compliance 'with the decision of the Board or upon such voluntary adjustment of the dispute,' the charge shall be dismissed. These provisions, limiting and curtailing the administrative power, find no counterpart in the provision for private redress contained in § 303(a)(4). Section 303(a)(4) as explained by Senator Taft, its author, 'retains simply a right of suit for damages against any labor organization which undertakes a secondary boycott or a jurisdictional strike.'12
7
The right to sue in the courts is clear, provided the pressure on the employer falls in the prescribed category which, so far as material here, is forcing or requiring him to assign particular work 'to employees in a particular labor organization' rather than to employees 'in another labor organization' or in another 'class.' Here the jurisdictional row was between the outside union and the inside union. The fact that the union of mill employees temporarily acceded to the claim of the outside group did not withdraw the dispute from the category of jurisdictional disputes condemned by § 303(a)(4). Petitioners, representing one union and employing outside labor, were trying to get the work which another union, employing mill labor, had. That competition for work at the expense of employers has been condemned by the Act. Whether that condemnation was wise or unwise is not our concern. It represents national policy which has both administrative and conventional legal sanctions.
8
Affirmed.
1
Section 8(b)(4)(D) provides:
'(b) It shall be an unfair labor practice for a labor organization or its agents—
'(4) to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is: * * * (D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work: Provided, That nothing contained in this subsection (b) shall be construed to make unlawful a refusal by any person to enter upon the premises of any employer (other than his own employer), if the employees of such employer are engaged in a strike ratified or approved by a representative of such employees whom such employer is required to recognize under this Act; * * *.'
2
Section 303(a)(4) provides:
'(a) It shall be unlawful, for the purposes of this section only, in an industry or activity affecting commerce, for any labor organization to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is—
'(4) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class unless such employer is failing to conform to an order or certification of the National Labor Relations Board determining the bargaining representative for employees performing such work. Nothing contained in this subsection shall be construed to make unlawful a refusal by any person to enter upon the premises of any employer (other than his own employer), if the employees of such employer are engaged in a strike ratified or approved by a representative of such employees whom such employer is required to recognize under the National Labor Relations Act.' 29 U.S.C.A. § 187(a)(4).
3
Section 303(b) provides:
'Whoever shall be injured in his business or property by reason (of) any violation of subsection (a) may sue therefor in any district court of the United States subject to the limitations and provisions of section 301 hereof without respect to the amount in controversy, or in any other court having jurisdiction of the parties, and shall recover the damages by him sustained and the cost of the suit.' 29 U.S.C.A. § 187(b).
4
The new Judicial Code creates judicial districts for the District of Columbia, 28 U.S.C. § 88, 28 U.S.C.A. § 88; for Hawaii, 28 U.S.C. § 91, 28 U.S.C.A. § 91; and for Puerto Rico, 28 U.S.C. § 119, 28 U.S.C.A. § 119; but none for the Canal Zone, the Virgin Islands, or for Alaska.
5
See note 3, supra.
6
Section 301 provides:
'(a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.
'(b) Any labor organization which represents employees in an industry affecting commerce as defined in this Act and any employer whose activities affect commerce as defined in this Act shall be bound by the acts of its agents. Any such labor organization may sue or be sued as an entity and in behalf of the employees whom it represents in the courts of the United States. Any money judgment against a labor organization in a district court of the United States shall be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets.
'(c) For the purposes of actions and proceedings by or against labor organizations in the district courts of the United States, district courts shall be deemed to have jurisdiction of a labor organization (1) in the district in which such organization maintains its principal office, or (2) in any district in which its duly authorized officers or agents are engaged in representing or acting for employee members.
'(d) The service of summons, subpena, or other legal process of any court of the United States upon an officer or agent of a labor organization, in his capacity as such, shall constitute service upon the labor organization.
'(e) For the purposes of this section, in determining whether any person is acting as an 'agent' of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling.' 29 U.S.C.A. § 185.
7
Section 2(6), 29 U.S.C.A. § 152(6), defines commerce to include trade, etc., between a state and a territory or within any territory.
8
See notes 1 and 2, supra.
9
Section 10(k) provides: 'Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4)(D) of section 8(b), the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen, unless, within ten days after notice that such charge has been filed, the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute. Upon compliance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment of the dispute, such charge shall be dismissed.'
10
The administrative finding under § 10(k) can be the basis for a cease and desist order under § 10(b) and (c). A cease and desist order was issued in the present dispute. 90 N.L.R.B. 1753.
11
Juneau Spruce Corp., 82 N.L.R.B. 650, 655.
12
93 Cong.Rec. 4858; 2 Legislative History of the Labor Management Relations Act, 1947, p. 1371.
| 67
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342 U.S. 205
72 S.Ct. 263
96 L.Ed. 232
UNITED STATESv.HAYMAN.
No. 23.
Argued Oct. 15, 1951.
Decided Jan. 7, 1952.
[Syllabus from pages 205-206 intentionally omitted]
Mr. Robert L. Stern, Washington, D.C., for the United States.
Mr. Paul A. Freund, Cambridge, Mass., for respondent.
Mr. Chief Justice VINSON delivered the opinion of the Court.
1
In its 1948 revision of the Judicial Code, Congress provided that prisoners in custody under sentence of a federal court may move the sentencing court to vacate, set aside or correct any sentence subject to collateral attack. 28 U.S.C. (Supp. IV) § 2255, 28 U.S.C.A. § 2255.1
2
Respondent, confined at the McNeil Island penitentiary in the Western District of Washington,2 invoked this new procedure by filing a motion to vacate his sentence and grant a new trial in the District Court for the Southern District of California. That court had imposed a sentence of twenty years' imprisonment in 1947 for forging Government checks and related violations of federal law.3
3
In his motion, respondent alleged that he did not enjoy the effective assistance of counsel guaranteed defendants in federal courts by the Sixth Amendment. Specifically he alleged that one Juanita Jackson, a principal witness against respondent as his trial and a defendant in a related case, was represented by the same lawyer as respondent. Respondent claims that he was not told of the dual representation and that he had no way of discovering the conflict until after the trial was over. It appeared from court records that Juanita Jackson testified against respondent after entering a plea of guilty but before sentence. Since a conflict in the interests of his attorney might have prejudiced respondent under these circumstances, the sentencing court and the court below, one judge dissenting, found that the allegations of respondent's motion warranted a hearing. Respondent's motion requested the issuance of an order to secure his presence at such a hearing.
4
For three days, the District Court received testimony in connection with the issues of fact raised by the motion. This proceeding was conducted without notice to respondent and without ordering the presence of respondent. On the basis of this ex parte investigation, the District Court found as a fact that respondent's counsel had also represented Juanita Jackson but that he 'did so only with the knowledge and consent, and at the instance and request of (respondent).' Pursuant to this finding, the District Court entered an order denying respondent's motion to vacate his sentence and to grant a new trial.
5
On appeal to the Court of Appeals for the Ninth Circuit,4 the majority, acting sua sponte, raised questions as to the adequacy and constitutionality of Section 2255. The court addressed itself to the provision that an application for a writ of habeas corpus 'shall not be entertained' where the sentencing court has denied relief 'unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.' Considering that the proceedings in the District Court were proper under the terms of Section 2255, the court below held, one judge dissenting, that the Section 2255 procedure could not be adequate or effective in this case and, in the alternative, that the Section, in precluding resort to habeas corpus, amounted to an unconstitutional 'suspension' of the writ of habeas corpus as to respondent.5
6
On rehearing below, and again in this Court, the Government conceded that respondent's motion raised factual issues which required respondent's presence at a hearing. The Court of Appeals, however, refused either to affirm the denial or respondent's motion or to accept the Government's concession and remand the case for a hearing with respondent present. Instead, it treated Section 2255 as a nullity and ordered respondent's motion dismissed so that respondent might proceed by habeas corpus in the district of his confinement. 187 F.2d 456.
7
We granted certiorari in this case, 1951, 341 U.S. 930, 71 S.Ct. 803, 95 L.Ed. 1360, to review the decision that Section 2255 must be considered a nullity, a holding that stands in conflict with cases decided in other circuits.6 We do not reconsider the concurrent findings of both courts below that respondent's motion states grounds to support a collateral attack on his sentence and raises substantial issues of fact calling for an inquiry into their verity.
8
First. The need for Section 2255 is best revealed by a review of the practical problems that had arisen in the administration of the federal courts' habeas corpus jurisdiction.
9
Power to issue the writ of habeas corpus,' the most celebrated writ in the English law,'7 was granted to the federal courts in the Judiciary Act of 1789, 1 Stat. 73, 81—82. Since Congress had not defined the term 'habeas corpus,' resort to the common law was necessary.8 Although the objective of the Great Writ long has been the liberation of those unlawfully imprisoned, at common law a judgment of conviction rendered by a court of general criminal jurisdiction was conclusive proof that confinement was legal. Such a judgment prevented issuance of the writ without more.9
10
In 1867, Congress changed the commonlaw rule by extending the writ of habeas corpus to 'all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States', and providing for inquiry into the facts of detention. 14 Stat. 385. In commenting on the 1867 Act this Court has said:
11
'The effect is to substitute for the bare legal review that seems to have been the limit of judicial authority under the common-law practice, and under the act of 31 Car. II, chap. 2, a more searching investigation, in which the applicant is put upon his oath to set forth the truth of the matter respecting the causes of his detention, and the court, upon determining the actual facts, is to 'dispose of the party as law and justice require.'
12
'* * * a prisoner in custody pursuant to the final judgment of a * * * court of criminal jurisdiction may have a judicial inquiry in a court of the United States into the very truth and substance of the causes of his detention, although it may become necessary to look behind and beyond the record of his conviction to a sufficient extent to test the jurisdiction of the * * * court to proceed to judgment against him. * * *'10
13
Under the 1867 Act,11 United States District Court have jurisdiction to determine whether a prisoner has been deprived of liberty in violation of constitutional rights, although the proceedings resulting in incarceration may be unassailable on the face of the record. Under that Act, a variety of allegations have been held to permit challenge of convictions on facts dehors the record.12
14
One aftermath of these developments in the law has been a great increase in the number of applications for habeas corpus filed in the federal courts by state and federal prisoners. The annual volume of applications had nearly tripled in the years preceding enactment of Section 2255.13 In addition to the problems raised by a large volume of applications for habeas corpus that are repetitious14 and patently frivolous, serious administrative problems developed in the consideration of applications which appear meritorious on their face. Often, such applications are found to be wholly lacking in merit when compared with the records of the sentencing court. But, since a habeas corpus action must be brought in the district of confinement,15 those records are not readily available to the habeas corpus court.
15
Walker v. Johnston, 1941, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830, illustrates a further practical problem presented when an application for habeas corpus alleges a meritorious claim not controverted by the records of the trial court. In the Northern District of California, Walker alleged that he had been denied counsel and coerced into pleading guilty by the United States Attorney, his assistant and a deputy marshal in the Northern District of Texas. The District Court for the Northern District of California refused to grant the writ after receiving ex parte affidavits from the federal officers denying the allegations. This Court reversed, finding that Walker's application raised material issues of fact and holding that the District Court must determine such issues by the taking of evidence, not by ex parte affidavits.16 Granting the need for such a hearing to resolve the factual issues, the required hearing had to be held in the habeas corpus court in California although the federal officers involved were stationed in Texas and the facts occurred in Texas.17
16
These practical problems have been greatly aggravated by the fact that the few District Courts in whose territorial jurisdiction major federal penal institutions are located were required to handle an inordinate number of habeas corpus actions far from the scene of the facts, the homes of the witnesses and the records of the sentencing court solely because of the fortuitous concentration of federal prisoners within the district.18
17
Second. The Judicial Conference of the United States,19 addressing itself to the problems raised by the increased habeas corpus business in 1942, created a committee of federal judges 'to study the entire subject of procedure on applications for habeas corpus in the federal courts.'20 At the next session of the Conference, the Committee on Habeas Corpus Procedure submitted its report. After extensive consideration, the Judicial Conference recommended adoption of two proposed bills, a 'procedural bill' containing provisions designed to prevent abuse of the habeas corpus writ and a 'jurisdictional bill,' Section 2 of which established a procedure whereby a federal prisoner might collaterally attack his conviction in the sentencing court.21 The Judicial Conference repeatedly reaffirmed its approval of this forerunner of Section 2255.22
18
In 1944, the two bills approved by the Judicial Conference were submitted to the Congress on behalf of the Conference. In the letter of transmittal and accompanying memorandum, Section 2 of the 'jurisdictional bill' was described as requiring prisoners convicted in federal courts to apply by motion in the sentencing court 'instead of making application for habeas corpus in the district in which they are confined.'23 At the request of the Chairmen of the House and Senate Judiciary Committees, a 'Statement' describing the necessity and purposes of the bills was submitted to Congress on behalf of the Judicial Conference Committee on Habeas Corpus Procedure. In this Statement, Congress was furnished statistics showing in detail the increased volume of applications for habeas corpus.24 The Statement, stressing the practical difficulties encountered in hearings held in the district of confinement rather than the district of sentence, described Section 2 of the 'jurisdictional bill' as follows:
19
'This section applies only to Federal sentences. It creates a statutory remedy consisting of a motion before the court where the movant has been convicted. The remedy is in the nature of, but much broader than, coram nobis. The motion remedy broadly covers all situations where the sentence is 'open to collateral attack.' As a remedy, it is intended to be as broad as habeas corpus.'25
20
While the bills proposed by the Judicial Conference were pending, the Committee on Revision of the Laws of the House of Representatives had drafted a bill revising the entire Judicial Code. Portions of this bill dealing with habeas corpus were drafted to conform with the bills approved by the Judicial Conference,26 including Section 2255, modeled after Section 2 of the 'jurisdictional bill' approved by the Judicial Conference. According to the Reviser's Note on Section 2255:
21
'This section restates, clarifies and simplifies the procedure in the nature of the ancient writ of error coram nobis. It provides an expeditious remedy for correcting erroneous sentences without resort to habeas corpus. It has the approval of the Judicial Conference of the United States. Its principal provisions are incorporated in H.R. 4233, Seventy-ninth Congress (the so-called jurisdictional bill).'27
22
After the House of Representatives had passed the bill revising the Judicial Code, the Judicial Conference reconsidered the two bills drafted by its Committee on Habeas Corpus Procedure. The Conference noted the importance of securing legislation along the lines of its proposals, approved the habeas corpus chapter of the Judicial Code revision bill with two amendments not affecting Section 2255 and directed that Congress be informed of the interest of the Conference in the enactment of the habeas corpus provisions of the revised Judicial Code.28
23
This review of the history of Section 2255 shows that it was passed at the instance of the Judicial Conference to meet practical difficulties that had arisen in administering the habeas corpus jurisdiction of the federal courts. Nowhere in the history of Section 2255 do we find any purpose to impinge upon prisoners' rights of collateral attack upon their convictions. On the contrary, the sole purpose was to minimize the difficulties encountered in habeas corpus hearings by affording the same rights in another and more convenient forum.29
24
Third. The crucial issue of fact presented by respondent's motion under Section 2255 was whether his attorney appeared as counsel for Juanita Jackson 'with the knowledge and consent' of respondent. The Court of Appeals found, and the Government now agrees, that respondent's presence at a hearing on this issue is required if the Section 2255 procedure is to be adequate and effective in this case. In holding that Section 2255 should be treated as a nullity in this case, the court below found that the Section contemplated and permitted the ex parte investigation conducted by the District Court without notice to respondent and without respondent's presence.
25
We do not find in Section 2255 the disturbing inadequacies found by the court below. The issues raised by respondent's motion were not determined by the 'files and records' in the trial court. In such circumstances, Section 2255 requires that the trial court act on the motion as follows: '* * * cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.' (Emphasis supplied.) In requiring a 'hearing,' the Section 'has obvious reference to the tradition of judicial proceedings'.30 Respondent, denied an opportunity to be heard, 'has lost something indispensable, however convincing the ex parte showing.'31 We conclude that the District Court did not proceed in conformity with Section 2255 when it made findings on controverted issues of fact relating to respondent's own knowledge without notice to respondent and without his being present.
26
The court below also held that the sentencing court could not hold the required hearing because it was without power to order the presence of a prisoner confined in another district. This want of power was thought to follow from our decision in Ahrens v. Clark, 1948, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898, where we held that the phrase 'within their respective jurisdictions' in the habeas corpus statute32 required the presence of the prisoner within the territorial jurisdiction of the District Court as a prerequisite to his filing an application for habeas corpus. This is not a habeas corpus proceeding. The sentencing court in the Southern District of California would not be issuing an original writ of habeas corpus to secure respondent's presence from another district. Issuance of an order to produce the prisoner is auxiliary to the jurisdiction of the trial court over respondent granted in Section 2255 itself and invoked by respondent's filing of a motion under that Section.
27
The very purpose of Section 2255 is to hold any required hearing in the sentencing court because of the inconvenience of transporting court officials and other necessary witnesses to the district of confinement. The District Court is not impotent to accomplish this purpose, at least so long as it may invoke the statutory authority of federal courts to issue 'all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.'33 An order to secure respondent's presence in the sentencing court to testify or otherwise prosecute his motion is 'necessary or appropriate'34 to the exercise of its jurisdiction under Section 2255 and finds ample precedent in the common law.35 The express language of Section 2255 that a 'court may entertain and determine such motion without requiring the production of the prisoner at the hearing' negatives any purpose to leave the sentencing court powerless to require production of the prisoner in an appropriate case.36 Other federal courts conducting Section 2255 proceedings have not encountered difficulties in securing the presence of prisoners confined outside the district.37
28
The existence of power to produce the prisoner does not, of course, mean that he should be automatically produced in every Section 2255 proceeding. This is in accord with procedure in habeas corpus actions.38 Unlike the criminal trial where the guilt of the defendant is in issue and his presence is required by the Sixth Amendment, a proceeding under Section 2255 is an independent and collateral inquiry into the validity of the conviction Whether the prisoner should be produced depends upon the issues raised by the particular case. Where, as here, there are substantial issues of fact as to events in which the prisoner participated, the trial court should require his production for a hearing.39
29
Fourth. Nothing has been shown to warrant our holding at this stage of the proceeding that the Section 2255 procedure will be 'inadequate or ineffective' if respondent is present for a hearing in the District Court on remand of this case. In a case where the Section 2255 procedure is shown to be 'inadequate or ineffective', the Section provides that the habeas corpus remedy shall remain open to afford the necessary hearing.40 Under such circumstances, we do not reach constitutional questions. This Court will not pass upon the constitutionality of an act of Congress where the question is properly presented unless such adjudication is unavoidable,41 much less anticipate constitutional questions.42
30
We conclude that the District Court erred in determining the factual issues raised by respondent's motion under Section 2255 without notice to respondent and without his presence. We hold that the required hearing can be afforded respondent under the procedure established in Section 2255. The Court of Appeals correctly reversed the order of the District Court but should have remanded the case for a hearing under Section 2255 instead of ordering that respondent's motion be dismissed. Accordingly, we vacate the judgment of the Court of Appeals and remand the case to the District Court for further proceedings in conformity with this opinion.
31
Vacated and remanded.
32
Mr. Justice BLACK and Mr. Justice DOUGLAS concur in the result.
33
Mr. Justice MINTON took no part in the consideration or decision of this case.
1
'A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
'A motion for such relief may be made at any time.
'Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.
'A court may entertain and determine such motion without requiring the production of the prisoner at the hearing.
'The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.
'An appeal may be taken to the court of appeals from the order entered on the motion as from a final judgment on application for a writ of habeas corpus.
'An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.'
2
Respondent is now confined at Alcatraz in the Northern District of California.
3
The judgment of conviction was affirmed by the Court of Appeals for the Ninth Circuit. 1947, 163 F.2d 1018.
4
The appeal was timely. Appeals from orders denying motions under Section 2255 are governed by the civil rules applicable to appeals from final judgments in habeas corpus actions. See Mercado v. United States, 1 Cir., 1950, 183 F.2d 486.
5
'The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.' U.S.Const. Art. I, § 9, cl. 2.
6
Martin v. Hiatt, 5 Cir., 1949, 174 F.2d 350, and Barrett v. Hunter, 10 Cir., 1950, 180 F.2d 510, 20 A.L.R.2d 965, have held expressly that Section 2255 is constitutional. Habeas corpus was also denied on the basis of Section 2255 in the following cases in other circuits without any suggestion that the Section was invalid: Smith v. Reid, D.C.Cir., 1951, 89 U.S.App.D.C. 272, 191 F.2d 491; Meyers v. Welch, 4 Cir., 1950, 179 F.2d 707; Weber v. Steele, 8 Cir., 1950, 185 F.2d 799. And in the following cases, other circuits remanded Section 2255 proceedings for hearing without suggesting that the Section was unconstitutional or inadequate: United States v. Paglia, 2 Cir., 1951, 190 F.2d 445; Howard v. United States, 6 Cir., 1951, 186 F.2d 778; United States v. Von Willer, 7 Cir., 1950, 181 F.2d 774.
7
3 Blackstone's Commentaries 129. The ancient origins of habeas corpus are traced in 9 Holdsworth, History of English Law (1926) 108—125; Jenks, The Story of Habeas Corpus, 18 L.Q.Rev. 64 (1902); Longsdorf, Habeas Corpus: A Protean Writ and Remedy, 1948, 8 F.R.D. 179.
8
Ex parte Bollman, 1807, 4 Cranch 75, 93—94, 2 L.Ed. 554.
9
Ex parte Watkins, 1830, 3 Pet. 193, 7 L.Ed. 650.
10
Johnson v. Zerbst, 1938, 304 U.S. 458, 466, 58 S.Ct. 1019, 1024, 82 L.Ed. 1461 (federal prisoner); Frank v. Mangum, 1915, 237 U.S. 309, 330—331, 35 S.Ct. 582, 59 L.Ed. 969 (state prisoner).
11
Now incorporated in 28 U.S.C. (Supp. IV) § 2241 et seq., 28 U.S.C.A. § 2241 et seq.
12
Moore v. Dempsey, 1923, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543 (mob domination of trial); Mooney v. Holohan, 1935, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (knowing use of perjured testimony by prosecution); Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (no intelligent waiver of counsel in federal court); Waley v. Johnston, 1942, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302 (coerced plea of guilty); United States ex rel. McCann v. Adams, 1943, 320 U.S. 220, 64 S.Ct. 14, 88 L.Ed. 4 (no intelligent waiver of jury trial in federal court); House v. Mayo, 1945, 324 U.S. 42, 65 S.Ct. 517, 89 L.Ed. 739 (denial of right to consult with counsel).
13
During 1936 and 1937, an annual average of 310 applications for habeas corpus were filed in the District Courts and an annual average of 22 prisoners were released. By 1943, 1944 and 1945, however, the annual average of filings reached 845, although an average of only 26 prisoners were released per year. Figures from tables submitted to the Chairmen of the House and Senate Judiciary committees. See 242 U.S. 215—216, 72 S.Ct. 270, 271, infra.
These figures do not include the District Court for the District of Columbia where a similar increase in the volume of applications for habeas corpus had been reported. See Dorsey v. Gill, 1945, 80 U.S.App.D.C. 9, 14, 148 F.2d 857, 862.
14
In several districts, up to 40% of all applications for habeas corpus filed during the years 1943, 1944 and 1945 were so-called repeater petitions. Speck, Statistics on Federal Habeas Corpus, 10 Ohio St.L.J. 337, 352 (1949). See also Price v. Johnston, 1948, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356; Dorsey v. Gill, note 13, supra; Goodman, Use and Abuse of the Writ of Habeas Corpus, 1947, 7 F.R.D. 313.
15
Ahrens v. Clark, 1948, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898.
16
Nor can the factual issues be heard before a commissioner. Holiday v. Johnston, 1941, 313 U.S. 342, 550, 61 S.Ct. 1015, 85 L.Ed. 1392.
17
It was to meet this problem that the Advisory Committee on the Federal Rules of Criminal Procedure proposed that a motion for new trial on the ground that a defendant has been deprived of a constitutional right might be made at any time after judgment. Report of the Advisory Committee (1944) Rule 35. This proposal was not included in the Rules as finally promulgated. See Dession, The New Federal Rules of Criminal Procedure: II, 56 Yale, L.J. 197, 233 (1947).
18
Of all habeas corpus applications filed by federal prisoners, 63% were filed in but five of the eighty-four District Courts. And, although habeas corpus trials average only 3% of all trials in all districts, the proportion of habeas corpus trials in those five districts has run from 20% to as high as 65% of all trials conducted in the district.
The basic data, compiled by Speck, note 14, supra, covers the six years immediately preceding enactment of Section 2255 in 1948. Again, the figures do not include the District Court for the District of Columbia. The five districts are: Northern California (Alcatraz); Northern Georgia (Atlanta); Kansas (Leavenworth); Western Washington (McNeil Is.); and Western Missouri (Springfield Medical Center).
19
The Judicial Conference of the United States, established by Congress in 1922, 42 Stat. 838, is a conference of the chief judges of the judicial circuits and the Chief Justice of the United States. It is the function of the Judicial Conference to make a comprehensive survey of the condition of business in the courts of the United States. Its proceedings, together with its recommendations for legislation, are submitted to Congress. 28 U.S.C. (Supp. IV) § 331.
20
Report of the Judicial Conference (1942) 18.
21
Report of the Judicial Conference (1943) 22—24.
22
Report of the Judicial Conference (1944) 22; id. (1945) 18.
23
Letter of transmittal, dated March 2, 1944. The complete description of Section 2 of the jurisdictional bill in the memorandum is as follows:
'Section two of the jurisdictional bill refers to prisoners who have been convicted in a federal court, and requires them, instead of making application for habeas corpus in the district in which they are confined, to apply by motion to the trial court to vacate or set aside the judgment. That court is then required to grant a prompt hearing and render its decision on the motion, from which an appeal lies to the circuit court of appeals. If it appears that it is not practicable for the prisoner to have his motion determined in the trial court because of his inability to be present at the hearing, 'or for other reasons,' then he has the right to make application to the court in the district where he is confined. Such an instance might occur where a dangerous prisoner, who had been convicted in the Southern District of New York, was confined in Alcatraz Penitentiary. The bill expressly provides that no circuit or district judge of the United States shall entertain an application for a writ in behalf of any prisoner
unless it appears that his right to discharge cannot be determined by motion made in the trial court.'
As submitted to Congress, Section 2 of the jurisdictional bill provided:
'No circuit or district judge of the United States shall entertain an application for writ of habeas corpus in behalf of any prisoner who is authorized to apply for relief by motion pursuant to the provisions of this section, unless it appears that it has not been or will not be practicable to determine his rights to discharge from custody on such a motion because of his inability to be present at the hearing on such motion, or for other reasons. Where the prisoner has sought relief on such a motion, if the circuit or district judge concludes that it has not been practicable to determine the prisoner's rights on such motion, the findings, order, or judgment on the motion shall not be asserted as a defense to the prisoner's application for relief on habeas corpus.'
H.R. 4232 and S. 1452, 79th Cong., 1st Sess. (procedural bill); H.R. 4233 and S. 1451, 79th Cong., 1st Sess. (jurisdictional bill) were introduced in 1945, but no action was taken by Congress.
H.R. 6723, 79th Cong., 2d Sess., introduced as a substitute for the jurisdictional bill, would have placed a time limit within which motion to vacate sentences could be filed by federal prisoners. The substitute bill was considered by the Judicial Conference, and ordered circulated among the federal judges. Report of the Judicial Conference (1946) 21. No action was taken by Congress on this substitute bill.
24
This statistical data is summarized in note 13, supra.
25
The Statement, prepared by Circuit Judge Stone and approved by Chief Justice Stone, described the practical considerations as follows:
'Most habeas corpus cases raise fact issues involving the trial occurrences or the alleged actions of judges, United States attorneys, marshals or other court officials. Obviously, it involves interruption of judicial duties if the trial judge, the United States attorney, the court clerk or the marshal (one or all of them) are required to attend the habeas corpus hearing as witnesses. Such attendance is sometimes necessary to refute particular testimony which the prisoner may give and, obviously, such attendance is the safest course. This is so because experience has demonstrated that often petitioner will testify to anything he may think useful, however false; and, without the witnesses present to refute such, he is encouraged to do so and may make out a case for discharge from merited punishment. Some realization of the possible extent of this burden on Court officials may be gained from the bare statement that, while convictions occur in all of the Districts throughout the country, federal prisoners are confined in a very small number of penal institutions; and habeas corpus must now be brought in the District where the petitioner is confined. Even if the testimony of these officials is taken by deposition, the interference and interruption is merely lessened in degree and the above danger is risked.
'The main disadvantages of the motion remedy are as follows: The risk during or the expense of transporting the prisoner to the District where he was convicted; and the incentive to file baseless motions in order to have a 'joy ride' away from the prison at Government expense.
'Balancing these, as well as less important, considerations, the Conference is of opinion that the advantages outweigh and that the motion remedy is preferable. As to the risk (escape or delivery) while transporting the prisoner to the District of conviction, the difference is only one of degree—of distance and, therefore, of opportunity. As to the expense, it is highly probable that it would be more expensive for the Government witnesses to go from the District where sentence was imposed and return than for the prisoner to be brought to such District and returned. As to the incentive to file petitions, the difference is between a longer and a shorter trip to the Court. It is thought that the provision in Section 2 providing for habeas corpus (in the District of confinement) where it is not 'practicable to determine his rights * * * on such a motion' will furnish a sufficient discretion in the judge or court before whom habeas corpus is filed to evaluate and defeat the above 'disadvantages' to a large degree.'
26
H.R.Rep.No.2646, 79th Cong., 2d Sess. (1946) 7.
27
H.R.Rep.No.2646, 79th Cong., 2d Sess. (1946) A172; H.R.Rep.No.308, 80th Cong., 1st Sess. (1947) A180.
28
Report of the Judicial Conference (1947) 17—18. See S.Rep.No.1559, 80th Cong., 2d Sess. (1948) 8—10.
29
Parker, Limiting the Abuse of Habeas Corpus, 1948, 8 F.R.D. 171, 175. Judge Parker served as Chairman of the Judicial Conference Committee on Habeas Corpus Procedure.
30
See Morgan v. United States, 1936, 298 U.S. 468, 480, 56 S.Ct. 906, 911, 80 L.Ed. 1288.
31
Snyder v. Commonwealth of Massachusetts, 1934, 291 U.S. 97, 116, 54 S.Ct. 330, 336, 78 L.Ed. 674.
32
28 U.S.C. § 452 (now 28 U.S.C. (Supp. IV) § 2241, 28 U.S.C.A. § 2241).
33
28 U.S.C. (Supp. IV) § 1651(a), 28 U.S.C.A. § 1651(a).
34
See Adams v. United States ex rel. McCann. 1942, 317 U.S. 269, 272—273, 63 S.Ct. 236, 87 L.Ed. 268.
35
In determining what auxiliary writs are "agreeable to the usages and principles of law," we look first to the common law. See Price v. Johnston, 1948, 334 U.S. 266, 281, 68 S.Ct. 1049, 1058, 92 L.Ed. 1356. In addition to 'the great and efficacious writ.' habeas corpus ad subjiciendum, other varieties of the writ were known to the common law. Blackstone described the writs of habeas corpus 'ad prosequendum, testificandum, deliberandum, etc.; which issue when it is necessary to remove a prisoner, in order to prosecute or bear testimony in any court, or to be tried in the proper jurisdiction wherein the fact was committed.' 3 Blackstone's Commentaries 129—130. See Ex parte Bollman, 1807, 4 Cranch 75, 97—98, 2 L.Ed. 554.
36
It is argued that the reference to the common law writ of error coram nobis in the Reviser's Note on Section 2255 shows an intention to adopt an ex parte investigation in lieu of a hearing in the usual sense. Congress did not adopt the coram nobis procedure as it existed at common law, the Reviser's Note merely stating that the Section 2255 motion was 'in the nature of' the coram nobis writ in the sense that a Section 2255 proceeding, like coram nobis, is an independent action brought in the court that entered judgment. Note 27, supra. Further, it by no means follows that an issue of fact could be determined in a coram nobis proceeding without the presence of the prisoner, the New York Court of Appeals recently holding that his presence was required under the common law. People v. Richetti, 1951, 302 N.Y. 290, 297 298, 97 N.E.2d 908, 911, 912.
37
Among the reported cases are: United States v. Parker, D.C.M.D.N.C.1950, 91 F.Supp. 996, affirmed, C.A.4 Cir., 1950, 184 F.2d 488; Jones v. United States, 4 Cir., 1950, 179 F.2d 303; Sturgeon v. United States, 5 Cir., 1951, 187 F.2d 9; Foster v. United States, 5 Cir., 1950, 184 F.2d 571; U.S. v. Woolard, D.C.N.D.Ala.1949, 83 F.Supp. 521, affirmed, 5 Cir., 1949, 178 F.2d 84; United States v. Jones, 7 Cir., 1949, 177 F.2d 476; Cherrie v. United States, 10 Cir., 1949, 179 F.2d 94 (reversed for hearing), D.C.Wyo.1950, 90 F.Supp. 261, affirmed, 10 Cir., 1950, 184 F.2d 384; Hurst v. United States, 10 Cir., 1950, 180 F.2d 835; Moss v. United States, 10 Cir., 1949, 177 F.2d 438; Doll v. United States, 10 Cir., 1949, 175 F.2d 884; Payne v. United States, D.C.M.D.Pa.1949, 85 F.Supp. 404; United States v. Bowen, D.C.N.D.Ga.1951, 94 F.Supp. 1006; United States v. Kratz, D.C.Neb.1951, 97 F.Supp. 999.
The Court of Appeals for the Second Circuit has ordered in a Section 2255 proceeding that a 'hearing' be held in open court with the prisoner present and free to testify. United States v. Paglia, 2 Cir., 1951, 190 F.2d 445, 448.
38
Walker v. Johnston, supra, 312 U.S. at page 284, 61 S.Ct. at page 578. According to the Reviser's Note, 28 U.S.C. (Supp. IV) § 2243, 28 U.S.C.A. § 2243, governing the requirements for presence of a prisoner in habeas corpus actions, was drafted to conform with the practice described in the Walker case.
39
See Barrett v. Hunter, 10 Cir., 1950, 180 F.2d 510, 514, 20 A.L.R.2d 965.
40
If Section 2255 had not expressly required that the extraordinary remedy of habeas corpus be withheld pending resort to established procedures providing the same relief, the same result would have followed under our decisions. Stack v. Boyle, 1951, 342 U.S. 1, 6—7, 72 S.Ct. 1, 4—5; Johnson v. Hoy, 1913, 227 U.S. 245, 33 S.Ct. 240, 57 L.Ed. 497; Ex parte Royall, 1886, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868.
41
Alma Motor Co. v. Timken-Detroit Axle Co., 1946, 329 U.S. 129, 67 S.Ct. 231, 91 L.Ed. 128; Ashwander v. Tennessee Valley Authority, 1936, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (Brandeis, J., concurring).
42
Rescue Army v. Municipal Court of City of Los Angeles, 1947, 331 U.S. 549, 568—569, 67 S.Ct. 1409, 91 L.Ed. 1666; Ashwander v. Tennessee Valley Authority, note 41, supra, 297 U.S. at page 346—347, 56 S.Ct. at page 482—483, and cases cited therein.
| 01
|
342 U.S. 282
72 S.Ct. 277
96 L.Ed. 318
HALCYON LINES et al.v.HAENN SHIP CEILING & REFITTING CORP. HAENN SHIP CEILING & REFITTING CORP v. HALCYON LINES et al.
Nos. 62, 197.
Argued Nov. 27, 1951.
Decided Jan. 14, 1952.
Mr. Joseph W. Henderson, Philadelphia, Pa., for Halcyon Lines.
Mr. Thomas E. Byrne, Jr., Philadelphia, Pa., for Haenn Ship Ceiling & Refitting Corp.
Mr. Justice BLACK delivered the opinion of the Court.
1
Halcyon Lines1 hired the Haenn Ship Ceiling and Refitting Corporation2 to make repairs on Halcyon's ship which was moored in navigable waters. Salvador Baccile, an employee of Haenn, was injured aboard ship while engaged in making these repairs. Alleging that his injuries were caused by Halcyon's negligence and the unseaworthiness of its vessel, he brought this action for damages against Halcyon in the United States District Court. On the ground that Haenn's negligence had contributed to the injuries, Halcyon brought Haenn in as a third-party defendant. By agreement of all parties, a $65,000 judgment was rendered for Baccile and paid by Halcyon. Despite Haenn's protest, the district judge allowed the introduction of evidence tending to show the relative degree of fault of the two parties. On this evidence the jury returned a special verdict finding Haenn 75% and Halcyon 25% responsible. The district judge refused to follow this jury determination and entered judgment in accordance with his conclusion that there was a general rule governing maritime torts such as this under which each joint tortfeasor must pay half the damages. Baccile v. Halcyon Lines, D.C., 89 F.Supp. 765. The Court of Appeals agreed that a right of contribution existed in this case but held that it could not exceed the amount Haenn would have been compelled to pay Baccile had he elected to claim compensation under the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1424, 33 U.S.C. § 901 et seq., 33 U.S.C.A. § 901 et seq. 3 Cir., 187 F.2d 403. We granted certiorari because of the conflicting views taken by the circuits as to the existence of and the extent to which contribution can be obtained in cases such as this.3 342 U.S. 809, 72 S.Ct. 29.
2
Where two vessels collide due to the fault of both, it is established admiralty doctrine that the mutual wrongdoers shall share equally the damages sustained by each, as well as personal injury and property damage inflicted on innocent third parties. This maritime rule is of ancient origin and has been applied in many cases,4 but this Court has never expressly applied it to non-collision cases.5 Halcyon now urges us to extend it to non-collision cases and to allow a contribution here based upon the relative degree of fault of Halcyon and Haenn as found by the jury. Haenn urges us to hold that there is no right of contribution, or in the alternative, that the right be based upon an equal division of all damages. Both parties claim that the decision below limiting an employer's liability for contribution to those uncertain amounts recoverable under the Harbor Workers' Act is impractical and undesirable.
3
In the absence of legislation, courts exercising a common-law jurisdiction have generally held that they cannot on their own initiative create an enforceable right of contribution as between joint tortfeasors.6 This judicial attitude has provoked protest on the ground that it is inequitable to compel one tortfeasor to bear the entire burden of a loss which has been caused in part by the negligence of someone else.7 Others have defended the policy of common-law courts in refusing to fashion rules of contribution.8 To some extent courts exercising jurisdiction in maritime affairs have felt freer than common-law courts in fashioning rules,9 and we would feel free to do so here if wholly convinced that it would best serve the ends of justice.
4
We have concluded that it would be unwise to attempt to fashion new judicial rules of contribution and that the solution of this problem should await congressional action. Congress has already enacted much legislation in the area of maritime personal injuries.10 For example, under the Harbor Workers' Act Congress has made fault unimportant in determining the employer's responsibility to his employee; Congress has made further inroads on traditional court law by abolition of the defenses of contributory negligence and assumption of risk and by the creation of a statutory schedule of compensation. The Harbor Workers' Act in turn must be integrated with other acts such as the Jones Act, 41 Stat. 1007, 46 U.S.C. § 688, 46 U.S.C.A. § 688, the Public Vessels Act, 43 Stat. 1112, 46 U.S.C. §§ 781—790, 46 U.S.C.A. §§ 781—790, the Limited Liability Act, R.S. § 4281, as amended, 46 U.S.C. § 181 et seq., 46 U.S.C.A. § 181 et seq., and the Harter Act, 27 Stat. 445, 46 U.S.C. §§ 190—195, 46 U.S.C.A. §§ 190—195. Many groups of persons with varying interests are vitally concerned with the proper functioning and administration of all these Acts as an integrated whole. We think that legislative consideration and action can best bring about a fair accommodation of the diverse but related interests of these groups. The legislative process is peculiarly adapted to determine which of the many possible solutions to this problem would be most beneficial in the long run. A legislative inquiry might show that neither carriers, shippers, employees, nor casualty insurance companies desire such a change to be made. The record before us is silent as to the wishes of employees, carriers, and shippers; it only shows that the Halcyon Line is in favor of such a change in order to relieve itself of a part of its burden in this particular lawsuit. Apparently insurance companies are opposed to such a change.11 Should a legislative inquiry convince Congress that a right to contribution among joint tortfeasors is desirable, there would still be much doubt as to whether application of the rule or the amount of contribution should be limited by the Harbor Workers' Act,12 or should be based on an equal division of damages, or should be relatively apportioned in accordance with the degree of fault of the parties.
5
In view of the foregoing, and because Congress while acting in the field has stopped short of approving the rule of contribution here urged, we think it would be inappropriate for us to do so. The judgments of the Court of Appeals are reversed and the cause is remanded to the District Court with instructions to dismiss the contribution proceedings against Haenn.
6
It is so ordered.
7
Reversed and remanded with instructions.
8
Mr. Justice REED and Mr. Justice BURTON would reverse with directions to the District Court to allow contributions equal to fifty per cent of the judgment recovered by Baccile against Halcyon.
1
Halcyon Lines refers to Halcyon Lines and Vinke & Co., two corporate joint owners and operators of the ship here involved. Halcyon is petitioner in No. 62 and the respondent in No. 197.
2
Haenn is the petitioner in No. 197 and the respondent in No. 62.
3
American Mutual Liability Insurance Co. v. Matthews, 2 Cir., 182 F.2d 322; United States v. Rothschild International Stevedoring Co., 9 Cir., 183 F.2d 181. See also Slattery v. Marra Bros., Inc., 2 Cir., 186 F.2d 134; Spaulding v. Parry Navigation Co., 2 Cir., 187 F.2d 257; Hitaffer v. Argonne Co., 87 U.S.App.D.C. 57, 183 F.2d 811.
4
The North Star, 106 U.S. 17, 21, 1 S.Ct. 41, 44, 27 L.Ed. 91, traces the doctrine back to the Rules of Oleron and the laws of Wisbuy. See also, The Washington, 9 Wall. 513, 19 L.Ed. 787; The Alabama, 92 U.S. 695, 23 L.Ed. 763; The Atlas, 93 U.S. 302, 23 L.Ed. 863; The Chattahoochee, 173 U.S. 540, 551—555, 19 S.Ct. 491, 495—496, 43 L.Ed. 801.
5
American Stevedores, Inc., v. Porello, 330 U.S. 446, 67 S.Ct. 847, 854, 91 L.Ed. 1011, recognized that some lower federal courts had applied the equal-division rule of contribution in non-collision cases. The opinion in that case implied that on remand and under certain contingencies the district court would 'be free to adjudge the responsibility of the parties' in accordance with the contribution rule announced by the lower federal courts. That statement was only incidental as compared to the important questions there decided and cannot be taken as foreclosing a full consideration and determination of the issue which is now directly presented and crucial to our decision.
6
Union Stock Yards Co. of Omaha v. Chicago, B. & Q.R. Co., 196 U.S. 217, 224, 25 S.Ct. 226, 227, 49 L.Ed. 453. And see cases collected in 3 A.L.R. Digest, pp. 864—866, and in Prosser on Torts (1941), p. 1113.
7
See e.g., Gregory, Contribution Among Joint Tortfeasors: A Defense, 54 Harv.L.Rev. 1170.
8
George's Radio, Inc. v. Capital Transit Co., 75 U.S.App.D.C. 187, 191, 126 F.2d 219, 223, dissenting opinion. See also James, Contribution Among Joint Tortfeasors: A Pragmatic Criticism, 54 Harv.L.Rev. 1156.
9
Swift & Co. v. Compania Colombiana Del Caribe, 339 U.S. 684, 690, 691, 70 S.Ct. 861, 865, 866, 94 L.Ed. 1206. Compare The Lottawanna, 21 Wall. 558, 22 L.Ed. 654.
10
See e.g., The Jones Act, 41 Stat. 1007, 46 U.S.C. § 688, 46 U.S.C.A. § 688, the Public Vessels Act, 43 Stat. 1112, 46 U.S.C. §§ 781—790, 46 U.S.C.A. §§ 781—790, and the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1424, 33 U.S.C. § 901 et seq., 33 U.S.C.A. § 901 et seq.
11
Gregory, supra, n. 7, p. 1177. James, supra, n. 8, pp. 1179—1180.
12
Section 5 of the Act provides that 'The liability of an employer prescribed in section 4 shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, * * *.' Haenn argues that this section provides the employer's exclusive liability thereby preventing a third party from having any right of contribution against an employer under the Act in cases where the joint negligence of a third party and the employer injure an employee covered by the Act. We find it unnecessary to decide this question which is treated by the cases cited in n. 3, supra.
| 78
|
342 U.S. 288
72 S.Ct. 281
96 L.Ed. 321
UNITED STATESv.SHANNON et al.
No. 47.
Argued Nov. 27, 1951.
Decided Jan. 14, 1952.
Mr. Roger P. Marquis, Washington, D.C., for petitioner.
Mr. John Grimball, Columbia, S.C., for respondents.
Mr. Justice CLARK delivered the opinion of the Court.
1
This case brought here on writ of certiorari1 tests the validity under the Anti-Assignment Act, R.S. § 3477,2 of an assignment of a claim against the United States for property damage. In an effort to escape the prohibition of that Act, respondents joined their assignors, Mrs. Kathleen Boshamer et al.,3 as well as the United States as parties defendant. The District Court, holding the assignment to be 'of full force and effect,' entered judgment for respondents against the United States alone. The Court of Appeals affirmed, 4 Cir., 186 F.2d 430.
2
The Boshamers owned, in addition to adjoining land which they leased to the United States, two one-acre tracts of land not under lease on which were located two houses and a barn. During January and February, 1945, these buildings were damaged by soldiers of the United States. On April 30, 1946, the Boshamers agreed to sell the entire tract—including both the leased and unleased portions—to respondents Samuel and W. L. Shannon, and in that instrument agreed that 'after completion of the sale and after delivery of the deed, the sellers hereby release to the purchasers any claim, reparation, or other cause of action against the United States Government for any damage caused the property * * *.'4
3
Respondents brought the present action under the Federal Tort Claims Act, 28 U.S.C. (Supp. IV) § 1346(b), 28 U.S.C.A. § 1346(b).5 In their complaint respondents alleged that the Boshamers 'have a cause of action against the United States of America and since they have assigned this cause of action to (respondents) for a valuable consideration and since they must prosecute this action in their own names they are equitably liable to (respondents) for the amount of any judgment that they may recover against the United States of America,' and further alleged that the Boshamers had 'refus(ed) to aid (respondents) in recovering the damages to which (respondents) and entitled.'6 The Boshamers filed an answer stating that they had made the assignment but 'are without knowledge or information as to any damages done * * * and * * * have been unwilling to institute or prosecute a damage suit against their Government for something they have no knowledge of.'7 At the trial respondents admitted that all of the damage had occurred before the claim had been assigned to them, and that they had known of the damage at the time of the assignment. The District Court, however, held the Anti-Assignment Act inapplicable on the ground that the joinder of the assignors prevented any possible prejudice to the Government, since '(t)he rights of all of the possible claimants and of the United States will be finally adjudicated in this one suit.'8
4
The Court of Appeals affirmed, believing that the assignment had resulted from a 'mutual mistake as to the law' (186 F.2d at page 433), and holding that: 'Relief is granted, not merely because (respondents) are assignees, nor even because the vendors have been made parties to the suit, but because of the mistake that led to the making of the assignment, which was a part of the consideration for the purchase price paid by (respondents) for the land conveyed to them. The relief is given to the assignees, not as a matter of law, but as a matter of equity because of the mistake involved and the hardship which would otherwise result.' 4 Cir., 186 F.2d 430, 434.
5
We cannot agree. In our view the judgment is based entirely on the assignment, which falls clearly within the ban of the Anti-Assignment Act. We have recently had occasion to review the Act's purposes. In United States v. Aetna Surety Co., 1949, 338 U.S. 366, 373, 70 S.Ct. 207, 211, 94 L.Ed. 171, we stated that '(i)ts primary purpose was undoubtedly to prevent persons of influence from buying up claims against the United States, which might then be improperly urged upon officers of the Government,' and that a second purpose was 'to prevent possible multiple payment of claims, to make unnecessary the investigation of alleged assignments, and to enable the Government to deal only with the original claimant.' Other courts have found yet another purpose of the statute, namely, to save to the United States 'defenses which it has to claims by an assignor by way of set-off, counter claim, etc., which might not be applicable to an assignee.'9
6
In the Aetna case, supra, this Court reaffirmed the principle that the statute does not apply to assignments by operation of law, as distinguished from voluntary assignments. There can be no doubt that in the present case the assignment was voluntary. The Boshamers were free to sell their land as well as their damage claim to whomever they pleased, or, had they chosen, they could have sold the land and the claim separately. The voluntary nature of the assignment is reflected in the fact that one of the respondents testified on cross-examination that he understood that he was 'buying a claim against the Government.'10
7
That an assignment is voluntary is not an end to the matter, however. In the ninety-nine-year history of the Anti-Assignment Act, this Court has recognized as exceptions to the broad sweep of the statute two types of voluntary assignments (aside from voluntary assignments made after a claim has been allowed): transfers by will, Erwin v. United States, 1878, 97 U.S. 392, 397, 24 L.Ed. 1065, and general assignments for the benefit of creditors, Goodman v. Niblack, 1881, 102 U.S. 556, 560—561, 26 L.Ed. 229. The first of these exceptions is justified by analogy to transfers by intestacy, which are exempt from the statute as being transfers by operation of law. It would be unwise to make a distinction for purposes of the Act between transfers which serve so much the same purposes as transfers by will and by intestacy. In similar fashion, the exception for voluntary assignments for the benefit of creditors has been justified by analogy to assignments in bankruptcy. See Goodman v. Niblack, supra. We find no such compelling analogies in the case at bar. On the contrary, this case presents a situation productive of the very evils which Congress intended to prevent. For example, the assignors knew of no damage and refused to bring suit, yet by their assignment the Government is forced to defend this suit through the courts and deal with persons who were strangers to the damage and are seeking to enforce a claim which their assignors have forsworn. One of Congress' basic purposes in passing the Act was 'that the government might not be harassed by multiplying the number of persons with whom it had to deal.' Hobbs v. McLean, 1886, 117 U.S. 567, 576, 6 S.Ct. 870, 874, 29 L.Ed. 940. See also United States v. Aetna Surety Co., supra.
8
Nor are we persuaded by the special considerations which the Court of Appeals thought were controlling here. To hold the Anti-Assignment Act inapplicable because an assignment has been executed under a 'mutual mistake of law' would require an inquiry into the state of mind of all parties to a challenged assignment, and would reward those who are ignorant of a statute which has been on the books for nearly a century. The all-inclusive language of the Act permits no such easy escape from its prohibition. In like manner, to hold the Act inapplicable because all possible claimants are before the court would be to draw a distinction on the basis of a purely fortuitous factor—whether an assignee, in his suit against the Government, can get personal service on his assignor. Even more important, this theory that an assignee can avoid the Act by joining his assignor as a party defendant or an unwilling party plaintiff, would not only subvert the purposes of the Act but flood the courts with litigation by permitting them to recognize assigned claims which the accounting officers of the Government would be obligated to reject. Since only a court can give the binding adjudication of the rights of all parties to the transaction—United States, assignor, and assignee—which it is claimed prevents any possible prejudice to the Government, the courts would be applying a laxer rule under the statute than would the accounting officers. Such was not the intention of Congress. See United States v. Gillis, 1877, 95 U.S. 407, 24 L.Ed. 503. We do not believe the Act can be by-passed by the use of any such procedural contrivance.
9
The Court of Appeals also felt that respondents' claim should be upheld because 'hardship' would otherwise result. If it were necessary only to balance equities in order to decide whether the Anti-Assignment Act applies—a view which this Court has many times repudiated—respondents would have little weight on their side of the scales. They paid the Boshamers $30 per acre for the land and buildings plus the claim; yet they admitted at the trial that land adjoining the Boshamer farm was worth $100 an acre or more, and that the Boshamer farm was one of the best in the county. Furthermore, we find here no 'unconscionable' conduct on the part of the government agents. They had no part in the making of the assignment upon which respondents rely, and in fact the first dealing between respondents and the Government agents occurred a least six weeks after that assignment had been executed.
10
The judgment is reversed.
11
Reversed.
12
Mr. Justice BLACK and Mr. Justice JACKSON dissent.
13
Mr. Justice DOUGLAS, dissenting.
14
First. If the Shannons were the only plaintiffs in the action, I assume that the Anti-Assignment Act, R.S. § 3477, would bar a recovery. But the Shannons—the assignees—have joined the Boshamers—the assignors—as defendants. Hence all the parties who can possibly be affected by the assignment are before the Court. Certainly the Boshamers could recover from the United States and, if the assignment were treated as void (as against the United States), any recovery by the Bosham.
15
Mr. Justice FRANKFURTER.
16
I would dismiss these writs of certiorari.
17
After the argument of these cases it became manifest that they were legal sports. Each presents a unique set of circumstances. Neither is likely to recur; both are individualized instances outside the scope of those considerations of importance which alone, as a matter of sound judicial discretion, justify disposition of a writ of certiorari on the merits.
18
The controlling purpose of the radical reforms introduced by the Judiciary Act of 1925, 28 U.S.C.A., reinforced by an exercise of the Court's rule-making power in regard to the residual jurisdiction on appeal (see Rule 12, 28 U.S.C.A., and 275 U.S. 603 604, 43 Harv.L.Rev. 33, 42 et seq.) was to put the right to come here, for all practical purposes, in the Court's judicial discretion. Needless to say, the reason for this is to enable the Court to adjudicate wisely, and therefore after adequate deliberation, the controversies that make the Court's existence indispensable under our Federal system.
19
From time to time some cases which ought never to have been here in the first instance are bound to reach the stage of argument, despite the process by which the wheat of worthy petitions for certiorari is sifted from the vast chaff of cases for which review is sought here, too often because of the blind litigiousness of parties or of the irresponsibility and excessive zeal of their counsel. Since the Judiciary Act of 1925, successive Chief Justices have repeatedly brought this abuse of the certiorari privilege to the attention of the Bar, but thus far without avail. When it is considered that at the last Term the Court passed on 987 such petitions, it is surprising, not that petitions are granted that escaped appropriate weeding-out—and, parenthetically, that a few are inappropriately denied—but that the process of rejection works as well as it does.1 And of course disposition of this volume of petitions for certiorari is the smaller part of the Court's work.2
20
The fact that a case inappropriate for review escaped denial through a weeding-out process that is bound to be circumscribed, is no reason for compounding the oversight by disposing of such a case on the merits, after argument has made more luminously clear than did the preliminary examination of the papers that the litigation ought to be allowed to rest where it is by dismissing the writ. The reason for this was set forth on behalf of the Court by Mr. Chief Justice Taft: 'If it be suggested that as much effort and time as we have given to the consideration of the alleged conflict would have enabled us to dispose of the case before us on the merits, the answer is that it is very important that we be consistent in not granting the writ of certiorari except in cases involving principles the settlement of which is of importance to the public, as distinguished from that of the parties, and in cases where there is a real and embarrassing conflict of opinion and authority between the Circuit Courts of Appeals. The present case certainly comes under neither head.' Layne & Bowler Corp. v. Western Well Works, Inc., 261 U.S. 387, 393, 43 S.Ct. 422, 423, 67 L.Ed. 712.
21
In fairness to the effective adjudication of those cases for which the Court sits, the Court has again and again acted on these considerations and dismissed the writ as 'improvidently granted' after the preliminary and necessarily tentative consideration of the petition.3 These reasons are especially compelling when the Court's mistake in assuming that an important issue of general law was involved does not survive argument as to cases like the present, which were part of the vast summer accumulation of petitions to come before the Court at the opening of the Term.4 ers would in equity belong to the Shannons. See Martin v. National Surety Co., 300 U.S. 588, 597, 57 S.Ct. 531, 535, 81 L.Ed. 822. If they can recover, I see no reason, except a narrow conceptual one, why in this proceeding the entire controversy cannot be settled. The judgment obtained by the Boshamers against the United States would in good conscience have to be held in trust for the Shannons.
22
Second. The suggestion that the writ be dismissed as improvidently granted raises a recurring problem in the administration of the business of the Court. A Justice who has voted to deny the writ of certiorari is in no position after argument to vote to dismiss the writ as improvidently granted. Only those who have voted to grant the writ have that privilege. The reason strikes deep. If after the writ is granted or after argument, those who voted to deny certiorari vote to dismiss the writ as improvidently granted, the integrity of our certiorari jurisdiction is impaired. By long practice—announced to the Congress and well-known to this Bar—it takes four votes out of a Court of nine to grant a petition for certiorari. If four can grant and the opposing five dismiss, then the four cannot get a decision of the case on the merits. The integrity of the four-vote rule on certiorari would then be impaired.
23
For separate opinion of Mr. Justice FRANKFURTER see 342 U.S. 288, 72 S.Ct. 286.
1
342 U.S. 808, 72 S.Ct. 27, 96 L.Ed. —-.
2
10 Stat. 170, as amended, 31 U.S.C. § 203, 31 U.S.C.A. § 203: 'All transfers and assignments made of any claim upon the United States, or of any part or share thereof, or interest therein, whether absolute or conditional, and whatever may be the consideration therefor, and all powers of attorney, orders, or other authorities for receiving payment of any such claim, or of any part or share, thereof, shall be absolutely null and void, unless they are freely made and executed in the presence of at least two attesting witnesses, after the allowance of such a claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof. * * *'
3
Hereafter referred to as 'the Boshamers.'
4
R. 33.
5
Originally there were two cases, one under the Tucker Act, 28 U.S.C. (Supp. IV) § 1346(a)(2), 28 U.S.C.A. § 1346(a)(2), for damages to property under lease to the United States, and the second under the Tort Claims Act for damages to buildings on property not under lease. The District Court awarded respondents judgment for $2,050 in the first action and $975 in the second, and both judgments were affirmed by the Court of Appeals. The Tort Claims action alone is involved here.
6
R. 20.
7
R. 23.
8
R. 18.
9
Grace v. United States, D.C.1948, 76 F.Supp. 174, 175.
10
R. 13.
1
Compare the 154 petitions for certiorari presented to the Court during the October Term, 1915. Even one-sixth of our current volume of petitions impelled the Court to emphasize the administrative importance of freeing this Court from the imposition of improperly granted petitions for certiorari. Furness, Withy & Co. v. Yang-Tsze Ins. Ass'n, Ltd., 242 U.S. 430, 434, 37 S.Ct. 141, 61 L.Ed. 409.
2
In addition to passing upon the 987 petitions for certiorari, the Court during the last Term considered and disposed of 77 cases by the 'per curiam decisions,' 121 'other applications' on the Miscellaneous Docket, and 5 cases on the Original Docket, and after argument decided with full opinion 114 cases. Journal Sup. Court U.S., October Term, 1950, I.
3
United States v. Rimer, 220 U.S. 547, 31 S.Ct. 596, 55 L.Ed. 578; Furness, Withy & Co. v. Yang-Tsze Ins. Ass'n, Ltd., supra; Tyrrell v. District of Columbia, 243 U.S. 1, 37 S.Ct. 361, 61 L.Ed. 557; Layne & Bowler Corp. v. Western Well Works, Inc., supra; Southern Power Co. v. North Carolina Public Service Co., 263 U.S. 508, 44 S.Ct. 164, 68 L.Ed. 413; Keller v. Adams-Campbell Co., 264 U.S. 314, 44 S.Ct. 356, 68 L.Ed. 705; Wisconsin Elec. Co. v. Dumore Co., 282 U.S. 813, 51 S.Ct. 214, 75 L.Ed. 728; Sanchez v. Borras, 283 U.S. 798, 51 S.Ct. 490, 75 L.Ed. 1421; Franklin-American Trust Co. v. St. Louis Union Trust Co., 286 U.S. 533, 52 S.Ct. 642, 76 L.Ed. 1274; Moor v. Texas & New Orleans R. Co., 297 U.S. 101, 56 S.Ct. 372, 80 L.Ed. 509; Texas & New Orleans R. Co. v. Neill, 302 U.S. 645, 58 S.Ct. 118, 82 L.Ed. 501; Goodman v. United States, 305 U.S. 578, 59 S.Ct. 363, 83 L.Ed. 364; Goins v. United States, 306 U.S. 622, 59 S.Ct. 783, 83 L.Ed. 1027; McCullough v. Kammerer Corp., 323 U.S. 327, 65 S.Ct. 297, 89 L.Ed. 273; McCarthy v. Bruner, 323 U.S. 673, 65 S.Ct. 126, 89 L.Ed. 547. See also Washington Fidelity Nat. Ins. Co. v. Burton, 287 U.S. 97, 100, 53 S.Ct. 26, 27, 77 L.Ed. 196; Wilkerson v. McCarthy, 336 U.S. 53, 64, 69 S.Ct. 413, 418, 93 L.Ed. 497.
4
Both of the petitions in these cases were filed on May 3, 1951, and granted on October 8, 1951. 342 U.S. 808, 809, 72 S.Ct. 27, 96 L.Ed. —-. At this Term's opening the Court passed on 224 petitions for certiorari accumulated during the summer. In addition, at the beginning of this Term 4 cases were dismissed on motion, 6 other cases were disposed of by 'per curiam decisions,' and 14 Miscellaneous Docket 'applications' were disposed of.
| 78
|
342 U.S. 308
72 S.Ct. 338
96 L.Ed. 342
GUESSEFELDTv.McGRATH, Attorney General as Successor to Alien Property Custodian.
No. 204.
Argued Nov. 29, 1951.
Decided Jan. 28, 1952.
Mr. William W. Barron, Washington, D.C., for petitioner.
Mr. James D. Hill, Washington, D.C., for respondent.
Mr. Justice FRANKFURTER delivered the opinion of the Court.
1
This is a case brought under § 9(a) of the Trading with the Enemy Act, 40 Stat. 411, as amended, 50 U.S.C.A.pp. § 1 et seq., 50 U.S.C.A.Appendix, § 1 et seq.,1 to recover property vested by the Alien Property Custodian. The District Court granted the Government's motion to dismiss, holding that plaintiff, while not 'resident within' Germany within the meaning of § 2 of the Act, and thus 'not an enemy' for the purposes of § 9(a), was precluded from recovering by § 39 which provides that 'No property * * * of Germany, Japan, or any national of either such country vested in * * * the Government * * * pursuant to the provisions of this Act, shall be returned to former owners thereof * * *.' 62 Stat. 1240, 1246, 50 U.S.C.App. (Supp. IV, 1946) § 39, 50 U.S.C.A.Appendix, § 39,2 89 F.Supp. 344. The Court of Appeals for the District of Columbia Circuit affirmed. 88 U.S.App.D.C. 383, 191 F.2d 639. We brought the case here for clarification of the restrictions imposed by and the remedies open under the Trading with the Enemy Act. 342 U.S. 810, 72 S.Ct. 52.
2
Accepting the allegations as true for the purpose of dealing with the legal issues raised by the motions to dismiss, the situation before us may be briefly stated. Guessefeldt, a German citizen, lived continuously in Hawaii from 1896 to 1938. In April of that year he took his family to Germany for a vacation. After the outbreak of war, he was unable to secure passage home before March, 1940, when his reentry permit expired. When the United States entered the war, he was involuntarily detained in Germany, first by the Germans and after 1945 by the Russians, until July, 1949, when he returned to this country. During that time he did nothing directly or indirectly to aid the war effort of the enemy.
3
The first question to be decided is whether the claimant was 'resident within' the territory of a nation with which this country was at war within the meaning of §§ 2 and 9(a) of the Trading with the Enemy Act. He was physically within the enemy's territory. He contends, however, that the meaning conveyed by 'resident within' is something more than mere presence; at the least a domiciliary connotation, if not domicile, is implied.
4
Legislative history leaves the meaning shrouded. Some use of the term 'domicile' as the touchstone of enemy status is to be found in the Congressional hearings and reports.3 But on the floor, Representative Montague, one of the managers of the bill, unequivocally stated under close questioning that the statutory language was intended to cover much more than those domiciled in enemy nations. Yet prisoners of war, expeditionary forces and 'sojourners' were not, he said, intended to be included. 55 Cong.Rec. 4922.4
5
Guessefeldt retained his American domicile. Moreover, if anything more than mere physical presence in enemy territory is required, it would seem clear that he was not an 'enemy' within the meaning of § 2. His stay before the war, as a matter of choice, was short. The circumstances negative any desire for a permanent or long-term connection with Germany. He intended, and indeed attempted, to leave there before this country entered the war. Being there under physical constraint, he is almost literally within the excepted class as authoritatively indicated by Mr. Montague. To hold that 'resident within' enemy territory implies something more than mere physical presence and something less than domicile is consistent with the emanations of Congressional purpose manifested in the entire Act, and the relevant extrinsic light, including the decisions of lower courts on this issue, which we note without specifically approving any of them. See McGrath v. Zander, 85 U.S.App.D.C. 334, 177 F.2d 649; Josephberg v. Markham, 2 Cir., 152 F.2d 644; Stadtmuller v. Miller, 2 Cir., 11 F.2d 732, 45 A.L.R. 895; Vowinckel v. First Federal Trust Co., 9 Cir., 10 F.2d 19; Sarthou v. Clark, D.C., 78 F.Supp. 139.
6
Guessefeldt has the further obstacle of § 39 to clear before he can succeed. Congress in 1948, so the Government's argument runs, adopted a 'policy of nonreturn,'5 and prohibited the restoration of vested property to a 'national' of Germany. A citizen is a national, and Guessefeldt is a German citizen. Thus, even though he may, before the enactment of § 39, have been entitled to bring suit as a nonenemy under § 9(a), that privilege has since been cut off. To which Guessefeldt counters that § 39 must be construed harmoniously with § 9(a); the term 'national' in the new section must accordingly be taken to mean only those German and Japanese citizens who could not theretofore have enforced the return of their property as of right. Section 39, in the context of its legislative history and in the light of the scheme and background of the statute, makes the Government's contention unpersuasive.
7
It is clear that the Custodian can lawfully vest under § 5 a good deal more than he can hold against a § 9(a) action. Central Union Trust Co. of New York v. Garvan, 254 U.S. 554, 41 S.Ct. 214, 65 L.Ed. 403; Clark v. Uebersee Finanz-Korp., 332 U.S. 480, 68 S.Ct. 174, 92 L.Ed. 880. Thus Congress had to make provision for the disposal of two classes of vested property. Nonenemy property, lawfully vested under § 5, was recoverable in a suit against the Custodian. § 9(a); see Becker Steel Co. of America v. Cummings, 296 U.S. 74, 56 S.Ct. 15, 80 L.Ed. 54. The second class, property owned by 'enemies' and therefore not subject to recovery under § 9(a), was reserved for disposition '(a)fter the end of the war * * * as Congress shall direct.' 40 Stat. 411, 423, 50 U.S.C.App. § 12, 50 U.S.C.A.Appendix, § 12.
8
After both wars, Congress did adopt measures to dispose of this property. The Treaty of Berlin, 42 Stat. 1939, 1940, at the end of World War I, confirmed the possession of vested enemy property by the United States. Junkers v. Chemical Foundation, Inc., D.C., 287 F. 597; Lange v. Wingrave, D.C., 295 F. 565; Klein v. Palmer, 2 Cir., 18 F.2d 932. For present purposes it does not matter whether this action was taken simply to secure claims of American citizens against Germany or was regarded as the rightful withholding of spoils of war. In the Settlement of War Claims Act of 1928, 45 Stat. 254, 270, 50 U.S.C.App. §§ 9(b)(12), (13), (14), (16), 9(m), 50 U.S.C.A.Appendix, § 9(b)(12—14, 16), (m), Congress provided for the return to admittedly enemy owners of 80% of their vested property. See Cummings v. Deutsche Bank und Disconto-Gesellschaft, 300 U.S. 115, 57 S.Ct. 359, 81 L.Ed. 545.6 Section 32 of the Trading with the Enemy Act, 60 Stat. 50, as amended, 50 U.S.C.App. (Supp. IV, 1946) § 32, 50 U.S.C.A.Appendix, § 32, enacted after World War II, provided for administrative returns of property to certain classes of 'technical' enemies who were ineligible to bring suit under § 9(a). Thus, if § 39 is treated as dealing only with property not otherwise subject to recovery, the consistency of the pattern of enactment is preserved. On the other hand, if the significant language of the section is regarded as requiring the retention of property which would otherwise be recoverable in a suit under § 9(a), it would mark the first departure from what appears to be a heretofore consistent Congressional policy.
9
Section 39 was passed as part of a measure establishing a commission on the problem of compensating American prisoners of war, internees and others who suffered personal injury or property damage at the hands of World War II enemies. Congressional attention was focused on the nature and extent of these claims and methods of adjudicating them. The issues involved in § 39 were of peripheral concern. Reading the legislative history in this light, it lends support to the view that § 39 was conceived as dealing with property not otherwise subject to return. Senate hearings opened with detailed testimony analyzing the value of assets which would be left after payments for administration and liquidation, returns under § 32, and disbursements in satisfaction of judgments in suits brought under § 9(a). Hearings before a Subcommittee of the Senate Committee on the Judiciary on H.R. 4044, 80th Cong., 2d Sess. 12—21. See also id., at 44, and Hearings before the House Committee on Interstate and Foreign Commerce on H.R. 873, 80th Cong., 1st Sess. 264. It seems clear that the legislation looks to the disposition of this fund, and the conclusion is reinforced by the provision of the section that 'The net proceeds remaining upon the completion of administration, liquidation, and disposition pursuant to the provisions of this Act of any such property or interest therein shall be covered into the Treasury at the earliest practicable date.'
10
The tenor of the hearings demonstrates no purpose to change the existing scope of § 9(a). The only reason a proviso to that effect was not included in § 39 as passed seems to be an assumption—unwarranted in the light of other evidence before the committees discussed below—that a national of any enemy nation had no rights under § 9(a) in any case.7 Indeed, the terms 'enemy,' enemy alien,' 'enemy national,' and 'German or Japanese national' are used interchangeably in the hearings, not only by committee members but by witnesses from the Office of Alien Property, without regard to precise shades of meaning in the context of the Trading with the Enemy Act.
11
By § 39 Congress was manifesting its 'firm resolve not to permit the recurrence of events which after the close of World War I led to the return of enemy property to their former owners.' H.R.Rep. No. 976, 80th Cong., 1st Sess. 2. Those events, as we have seen, culminated in the Settlement of War Claims Act of 1928 permitting enemies as defined in § 2 of the Trading with the Enemy Act to recover 80% of their vested assets. The major controversy on § 39 was whether this reversal of post-World War I policy was justifiable as a matter of international law or appropriate as a course of action for the United States. Opponents of the section considered the 'policy of nonreturn' as applied to admitted enemies illegal, or at least unjust, confiscation of private property. To this point—and not to the issue before the Court in this case—were directed the references in the reports, H.R.Rep. No. 976, 80th Cong., 1st Sess. 2, and debate, 94 Cong.Rec. 550 551, on which the Government relies.
12
On the other hand, both Senate and House committees had before them testimony calling attention to the very problem now in issue. Hearings before the House Committee on Interstate and Foreign Commerce, supra, at 265; Hearings before a Subcommittee of the Senate Committee on the Judiciary, supra, at 197, 254. And one witness presented a draft substitute for the section, complex to be sure, which would expressly have saved cases like Guessefeldt's from the operation of the bill. Id., at 233—236. This suggestion was not acted upon by the committee. Yet taken as a whole, the testimony on this issue was meagre and unimpressive. It was largely in written form, and therefore less likely to have been seen by or to have had impact on the committee members or to reflect their views. These considerations, taken together with the peripheral character of the problem from the committees' point of view, the consistent failure to appreciate the technical significance of the term 'enemy national' in the framework of the Act, and the fact that the matters raised by this testimony were not touched upon in floor debate—all go far to overcome any presumption that the claimant's situation was considered by Congress and rejected.
13
Moreover, a decision for the Government would require us to decide debatable constitutional questions. I suits by United States citizens, § 9(a) has been construed, over the Government's objection, to require repayment of just compensation when the Custodian has liquidated the vested assets. Becker Steel Co. of America v. Cummings, supra; Henkels v. Sutherland, 271 U.S. 298, 46 S.Ct. 524, 70 L.Ed. 953; see Central Union Trust Co. of New York v. Garvan, supra, 254 U.S. at page 566, 41 S.Ct. at page 215; Stoehr v. Wallace, 255 U.S. 239, 245, 41 S.Ct. 293, 296, 65 L.Ed. 604. Such a construction, it is said, is encessary to preserve the Act from constitutional doubt. It is clear too that friendly aliens are protected by the Fifth Amendment requirement of just compensation. Russian Volunteer Fleet v. United States, 282 U.S. 481, 51 S.Ct. 229, 75 L.Ed. 473. The question which remains is whether a citizen in Guessefeldt's position of a nation with which this country is at war is deemed a friendly alien. More broadly, is any national of an enemy country within the reach of constitutional protection? The thrust of the Government's argument is that § 39 bars any such claimant on the mere showing of his citizenship. Ex parte Kawato, 317 U.S. 69, 63 S.Ct. 115, 87 L.Ed. 58, holds that as a matter of common law as well as interpretation of the Trading with the Enemy Act, a resident enemy national, even though interned, must be permitted access to American courts. And The Venus, 8 Cranch 253, 3 L.Ed. 553, seems to say that at common and international law, in the absence of hostile acts, enemy status, at least for the purpose of trade, follows location and not nationality. Cf. Miller v. United States, 11 Wall. 268, 310—311, 20 L.Ed. 135.
14
On the other side is Mr. Justice (then Judge) Cardozo's careful opinion in Techt v. Hughes, 229 N.Y. 222, 128 N.E. 185, 11 A.L.R. 166, holding that a national of an enemy country, wherever resident, is an enemy alien and that any mitigation of the rigors of that status, as in the right to sue, is a matter of grace. He suggests, however, that 'enemy alien' for the purpose of trade with the enemy may be something different than for other purposes, but he had, of course, no occasion to consider whether this difference attained constitutional dimensions. In Klein v. Palmer, supra, a suit by two resident German citizens, one proclaimed a dangerous enemy alien during World War I, against the Alien Property Custodian for damages and equitable relief, Judges Hough, L. Hand and Mack held that 'the government was under no constitutional prohibition from confiscating the property of the enemy's nationals, whether resident or nonresident.' Id., 18 F.2d at page 934. It was the court's view that the class of nonenemies for the purpose of § 2 of the Trading with the Enemy Act was broader than the class entitled to just compensation under the Fifth Amendment.
15
Certainly, the constitutional problem is not imaginary, and the claim not frivolous which would have to be rejected to decide in the Government's favor. Considering that confiscation is not easily to be assumed, a construction that avoids it and is not barred by a fair reading of the legislation is invited.
16
The concern of the Trading with the Enemy Act is with problems at once complicated and far-reaching in their repercussions. Instead of a carefully matured enactment, the legislation was a makeshift patchwork. Such legislation strongly counsels against literalness of application. It favors a wise latitude of construction in enforcing its purposes. Cf. Clark v. Uebersee Finanz-Korp., 332 U.S. 480, 68 S.Ct. 174, 92 L.Ed. 880; Markham v. Cabell, 326 U.S. 404, 66 S.Ct. 193, 90 L.Ed. 165; Silesian-American Corp. v. Clark, 332 U.S. 469, 68 S.Ct. 179, 92 L.Ed. 81.8 None of the considerations we have canvassed standing alone is conclusive in favor of the claimant. Perhaps none, by itself, would justify a decision in his favor. The cumulative effect, however, places such a decision well within the bounds of reasonable construction. We have said enough to show that the question is not free from doubt. On the balance, however, we think § 39 is properly construed as applying only to those German and japanese nationals otherwise ineligible to bring suit under § 9(a).
17
The judgment below is reversed.
18
Reversed.
19
Mr. Justice CLARK took no part in the consideration or decision of this case.
20
Mr. Chief Justice VINSON, with whom Mr. Justice REED and Mr. Justice MINTON join, dissenting.
21
I dissent because I would read Section 39 as it is written. That Section plainly forbids return of vested property to 'any national' of Germany or Japah.1 Petitioner is a German citizen and the Court itself concedes that a German citizen is a German national. 342 U.S. 320, 72 S.Ct. 345. Yet the Court permits return of property to petitioner, limiting the application of Section 39 to some nationals, namely those nationals who are also 'enemies' as the term is defined in Section 2(a) of the Trading with the Enemy Act.
22
The term 'national' has also been given legislative definition. 'National' is defined as including 'a subject, citizen or resident of a foreign country' in Executive Order No. 8389,2 a regulation 'approved, ratified, and confirmed' by Congress in 1941.3 The Court applies Section 39 by reading out the term 'national' and inserting the term 'enemy' as defined in Section 2(a). Since it is apparent on the face of the statute that Congress in no wise chose to assimilate these two clearly defined terms, the Court should not.
23
Just the other day, we held that '(w)e are not free, under the guise of construction, to amend (a) statute' by reading 'carefully distinguished and separately defined words to mean the same thing.' Pillsbury v. United Engineering Co., 1952, 342 U.S. 197, 199—200, 72 S.Ct. 223, 224. In departing from that standard in this case, the Court rewrites Section 39 so that the Trading with the Enemy Act of 1917, as amended, will conform more closely to its own notions of statutory symmetry. Condemning that Act as a 'makeshift patchwork' does not justify a failure to read the 1948 addition of Section 39 as it was written by Congress. Statutory revision by this Court is not consistent with our judicial function of enforcing statutory law as written by the legislature.
24
In my view, this case should be decided on the basis of the legislatively defined language of Section 39. But the Court has broadened the inquiry. Even on the Court's own basis, the result in this case cannot be squared with the history of the Trading with the Enemy Act, the legislative bankground of Section 39 or the scope of Congress' war power over enemy property.
25
At the outset, it should be clearly understood that when petitioner's property was vested, he was an alien enemy in every ordinary sense of that term. So long as his citizenship was German, he became an enemy upon the declaration of war with Germany, whereever his residence and whatever his personal sentiments. This Court has so held throughout its history.4 The Court today acknowledges that Techt v. Hughes, 1920, 229 N.Y. 222, 128 N.E. 185, 11 A.L.R. 166, so held after an exhaustive review of the authorities. It should be added that this Court recently adopted the rationale of Techt v. Hughes, supra, in Johnson v. Eisentrager, 1950, 339 U.S. 763, 771—773, 70 S.Ct. 936, 940—941, 94 L.Ed. 1255. Nor need we look only to judicial definition of petitioner's status. Congress has defined 'alien enemies' as including 'all natives, citizens, denizens, or subjects of the hostile nation or government'.5 As we so recently said, the classification between friend and enemy based upon citizenship, if ever 'doctrinaire,' has now been 'validated by the actualities of modern total warfare.' Johnson v. Eisentrager, supra, 339 U.S. at page 772, 70 S.Ct. at page 941.
26
When, in 1917, Congress defined the term 'enemy' solely 'for the purposes of' the Trading with the Enemy Act, it was aware that such status was ordinarily determined by 'nationality or allegiance of the individual' rather than by 'domicile or residence.'6 However, at that time, Congress chose to limit the definition of 'enemy' to include only those persons 'resident within' enemy territory—a definition which does not include petitioner on the pleadings in this case. Section 2(a) of the Trading with the Enemy Act. This represented a deliberate 'relaxation' and 'modification' of Congress' power over ememy property.7 This policy of modification was followed throughout the World War I alien property program, culminating in the Settlement of War Claims Act of 1928 which authorized return of 80% of seized property to its former owners.8
27
World War II legislation over alien property represented a complete reversal of the soft policy of World War I. In 1941, Congress extended the power of seizure and vesting to all property of 'any foreign country or national thereof' in exercising its war power 'to affirmatively compel the use and application of foreign property in a manner consistent with the interest of the United States.'9 In 1946, Congress added Section 32 to the Trading with the Enemy Act authorizing administrative return of vested property subject to certain conditions, one of which prevented administrative return to a 'citizen or subject of (an enemy) nation' who was 'present * * * in the territory of such nation'.10 Finally, in the War Claims Act of 1948, Congress added Section 39 to the Trading with the Enemy Act, thereby expressing its 'firm resolve not to permit the recurrence' of the World War I policy of returning enemy property.11 The House Committee on Interstate and Foreign Commerce, in reporting favorably upon the bill, stated:
28
'The policy of nonreturn and noncompensation is a sound public policy which should be enacted into law. It does not violate any concepts of international law or international morality. No essential difference exists between private property and public property in the case of Germany and Japan. For several years before World War II while Germany and Japan were preparing to make war upon the United States, property owned in the United States by the citizens of both of these countries was subject to rigid control of their respective governments. While the fiction of private ownership was retained, actually property of German and Japanese nationals in the United States was widely used to accomplish the national objectives of those countries.
29
'The position of Germany and Japan (with respect to war claims against these countries) is somewhat analogous to that of a bankrupt against whom claims are apt to be filed in an amount greatly in excess of the bankrupt's assets. The legitimate claims of the United States alone, on account of the expense incurred in fighting World War II, will most likely exceed many times the assets available for payment even over a considerable period of years. Under these circumstances it is therefore not only expedient but just and fair for the United States to marshal all Japanese and German assets which are available in this country.'12
30
Under this reversal of World War I policy, the property of German nationals, including petitioner's, was to be retained to satisfy war claims arising out of German aggression. The policy of non-return of vested property to German nationals restricts the scope of Section 9(a) as to returns to German nationals such as petitioner who are not 'enemies' as defined in Section 2(a). The primary purpose of Section 9(a)—to provide for judicial return of property mistakenly seized from American citizens or nationals of friendly countries—is preserved.13 Such an interpretation of Section 39, reading the word 'national' as meaning 'national' and not 'enemy,' is far more harmonious with the entire Act and particularly the World War II legislation on alien property14 than the Court's reading of the statute.
31
Looking to the legislative history of Section 39 itself, the Court notes that congressional attention was focused on the problem of compensating prisoners of war, internees and others injured by our World War II enemies. With the claims of the victimes of aggression pressed upon it, it is not surprising that, when Congress balanced those claims against the rights of enemy nationals to property lawfully vested by the Alien Property Custodian, it prohibited return of property to enemy 'nationals' and not merely to 'enemies' as restrictively defined in Section 2(a) of the Trading with the Enemy Act of 1917. It cannot be fairly suggested that congressional use of the term 'national' was inadvertent. Objections to the restriction on recovery of property under Section 9(a) resulting from the use of the term 'national' instead of 'enemy' in Section 39 were pressed upon Congress in a written statement and in oral testimony before a congressional committee.15 A witness offered a proposed amendment to Section 39 that would have limited its application to certain described enemy nationals.16 Even this amendment would not have saved petitioner's claim. It would not have substituted the term 'enemy' as narrowly defined in Section 2(a) of the Act and hence would not have limited the operation of Section 39 as drasticlly as the Court does today.
32
The Court closes with the statement that its construction of Section 39 avoids a constitutional problem which, it says, 'is not imaginary.' As discussed above, it is settled that petitioner is an alien enemy in every sense of the word but the purposely restrictive definition of Section 2(a) of the Trading with the Enemy Act. 'There is no constitutional prohibition against confiscation of enemy properties.' United States v. Chemical Foundation, Inc., 1926, 272 U.S. 1, 11, 47 S.Ct. 1, 5, 71 L.Ed. 131, and cases cited therein. The suggestion that the relaxed legislative definition of 'enemy' in 1917 could limit the constitutional war power of Congress over enemy property finds no support in decisions of this Court.17
33
Petitioner, a German citizen present in Germany during the war, is certainly as much an enemy alien as was Ludecke, a German citizen lawfully resident in this country during the war. We found no constitutional barrier to Ludecke's summary removal without judicial scrutiny under the Enemy Alien Act of 1798. Ludecke v. Watkins, 1948, 335 U.S. 160, 68 S.Ct. 1429, 92 L.Ed. 881. That opinion relied upon an excerpt from a paragraph by Chief Justice Marshall in Brown v. United States, 1814, 8 Cranch 110, 126, 3 L.Ed. 504, a case dealing with confiscation of property. 335 U.S. at page 164, 68 S.Ct at page 1430, 92 L.Ed. 881. The full paragraph reads as follows: 'War gives an equal right over persons and property: and if its declaration is not considered as prescribing a law respecting the person of an enemy found in our coutry, neither does it prescribe a law for his property. The act concerning alien enemies, which confers on the president very great discretionary powers respecting their persons, affords a strong implication that he did not possess those powers by virtue of the declaration of war.'
34
Any doubts as to Congress' 'equal right over persons and property' of enemy aliens should have vanished with the Ludecke decision. The Just Compensation Clause, like the Due Process Clause, is found in the Bill of Rights. As we said in our Ludecke decision, 'it would savor of doctrinaire audacity now to find the statute offensive to some emanation of the Bill of Rights.' 335 U.S. at page 171, 68 S.Ct. at page 1434, 92 L.Ed. 881. In addition to what was said in Ludecke, the admonition of Chief Justice Marshall in Brown v. United States, supra, is appropriate in this case: 'Respecting the power of government no doubt is entertained. That war gives to the sovereign full right to take the persons and confiscate the property of the enemy wherever found, is conceded. The mitigations of this rigid rule, which the humane and wise policy of modern times has introduced into practice, will more or less affect the exercise of this right, but cannot impair the right itself. That remains undiminished, and when the sovereign authority shall chuse to bring it into operation, the judicial department must give effect to its will. But until that will shall be expressed, no power of condemnation can exist in the Court.' 8 Cranch at pages 122—123, 3 L.Ed. 504.
35
The will of Congress having been expressed in unmistakable terms in Section 39, I would enforce, not frustrate, the legislative command.
1
Sec. 2. 'The word 'enemy,' as used herein, shall be deemed to mean, for the purposes of such trading and of this Act—
'(a) Any individual, partnership, or other body of individuals, of any nationality, resident within the territory (including that occupied by the military and naval forces) of any nation with which the United States is at war, or resident outside the United States and doing business within such territory, and any corporation incorporated within such territory of any nation with which the United States is at war or incorporated within any country other than the United States and doing business within such territory.'
Sec. 9. '(a) Any person not an enemy * * * claiming and any interest, right, or title in any money or other property which may have been conveyed, transferred, assigned, delivered, or paid to the Alien Property Custodian or seized by him hereunder and held by him or by the Treasurer of the United States, * * * may file with the said custodian a notice of his claim under oath and in such form and containing such particulars as the said custodian shall require; * * * (S)aid claimant may institute a suit in equity in the Supreme Court of the District of Columbia or in the district court of the United States for the district in which such claimant resides, or, if a corporation, where it has its principal place of business (to which suit the Alien Property Custodian or the Treasurer of the United States, as the case may be, shall be made a party defendant), to establish the interest, right, title, or debt so claimed, and if so established the court shall order the payment, conveyance, transfer, assignment, or delivery to said claimant of the money or other property so held * * * or the interest therein to which the court shall determine said claimant is entitled.' 50 U.S.C.A.Appendix, §§ 2, 2(a), 9(a).
2
Sec. 39. 'No property or interest therein of Germany, Japan, or any national of either such country vested in or transferred to any officer or agency of the Government at any time after December 17, 1941, pursuant to the provisions of this Act, shall be returned to former owners thereof or their successors in interest, and the United States shall not pay compensation for any such property or interest therein. The net proceeds remaining upon the completion of administration, liquidation, and disposition pursuant to the provisions of this Act of any such property or interest therein shall be covered into the Treasury at the earliest practicable date. Nothing in this section shall be construed to repeal or otherwise affect the operation of the provisions of section 32 of this Act or of the Philippine Property Act of 1946.'
3
See Statement of Hon. Robert Lansing, Secretary of State, Hearings before the House Committee on Interstate and Foreign Commerce on H.R. 4704, 65th Cong., 1st Sess. 3, 4. But see id., at 9. Assistant Attorney General Charles Warren, principal draftsman of the bill, testified that it had no application to Germans 'domiciled' in this country. Id., at 34. And the House Report speaks of enemy status as being determined 'not so much * * * by the nationality or allegiance of the individual, * * * as by his * * * commercial domicile or residence in enemy territory. The enemy domiciled or residing in the United States is not included * * *.' H.R.Rep.No.85, 65th Cong., 1st Sess. 2.
4
The validity of this construction is additionally suggested by the explanation in the Senate report of the parallel term of § 2, 'doing business within such territory.' According to the report that meant 'having a branch or agency actively conducting business within that country.' S.Rep.No.111, 65th Cong., 1st Sess. 4. That is to say, not 'domiciled' in enemy territory by American corporation law standards, but having a substantial, not casual or transitory connection with it. See also Hearings before a Subcommittee of the Senate Committee on Commerce on H.R.4960, 65th Cong., 1st Sess. 136—137.
5
H.R.Rep.No.976, 80th Cong., 1st Sess. 2.
6
The resolution of July 2, 1921, terminating the state of war with Germany, provided that 'All property of the Imperial German Government * * * and of all German nationals which * * * has * * * come into the possession or under control of * * * the United States * * * shall be retained * * * and no disposition thereof made, except as shall have been heretofore or specifically hereafter shall be provided by law.' 42 Stat. 105, 106. By the Treaty of Versailles, art. 297(d), 'all the exceptional war measures, or measures of transfer * * * shall be considered as final and binding upon all persons.' In art. 297(i), Germany undertook 'to compensate her nationals in respect of the sale or retention of their property, rights or interests in Allied or Associated States.' The Treaty of Berlin, 42 Stat. 1939, 1940, incorporated these provisions of the Versailles Treaty, together with appendices defining 'exceptional war measures' and cutting off the right of suit by German nationals against American officials on account of wartime action. An agreement of August 10, 1922, 42 Stat. 2200, established a Mixed Claims Commission to adjudicate claims of American nationals against Germany. Provisions for the return of vested property were made by successive amendments to § 9. Finally, in the Settlement of War Claims Act, 45 Stat. 254, 270, Congress provided for the return of 80% of their vested property to German enemies who would waive their claims to the remaining 20%. Germany in a debt funding agreement of Junt 23, 1930, deposited bonds with the United States, payments on which were to be applied to the settlement of awards of the Mixed Claims Commission. When Germany defaulted on these payments, Congress, by Public Resolution No. 53 of June 27, 1934, 48 Stat. 1267, suspended all deliveries of property under the Settlement of War Claims Act to German nationals until Germany should clear up the arrears.
7
As it passed the House, the bill contained a provision suspending the payment out of vested assets of debts owed by enemies to citizens. In the Senate hearings, Representative Beckworth, who had sponsored that provision, urged the Senate to go further and suspend the payment of so-called 'title claims' as well. He presented a draft amendment for the Senate committee's consideration which provided that 'no property * * * shall be returned to former owners * * * except as directed by a court under § 9(a) of the act.' This was to be an addition to the provision which became § 39. Hearings before a Subcommittee of the Senate Committee on the Judiciary on H.R. 4044, 80th Cong., 2d Sess. 124. Both of these provisions were omitted from the bill reported by the Senate. Although this bit of legislative history reveals a certain amount of confusion about the operation of the Act, it is tolerably clear from it that the operation of § 9(a) was not intended to be affected by the legislation.
8
Other than those here for review, six district court cases have involved construction of § 39. The Government contends that five of these have accepted the position it urges in this case. Schill v. McGrath, D.C., 89 F.Supp. 339; Lippmann v. McGrath, D.C., 94 F.Supp. 1016; Bellman v. Clark,* Civ.No.47—229 (S.D.N.Y. Nov. 8, 1948); Mittler v. McGrath, D.C.D.C.1950, 102 F.Supp. 1007; Janner v. McGrath, * Civ.No.3685—49, D.C.D.C.Mar. 31, 1950. Even if this were true, it would present no such settled line of adjudication as to give pause to this Court in upsetting it. But at least three of these cases present no conflict with a decision in favor of the claimant here. In Mittler, Janner and Lippmann, plaintiffs are enemies within § 2, thus ineligible under § 9(a), and because they are also citizens of Germany must be barred by § 39 whatever the meaning ascribed to the term 'national' in that section. The same is possibly true of Schill, since the plaintiff there was interned as a dangerous enemy alien during the war. It might also be added that in McGrath v. Zander, supra, decided after the enactment of § 39, the Government apparently made no contention that the section would bar the suit, although on the Government's theory that result would clearly follow. Thus, analysis of the cases shows no such near unanimity in its favor as the Government contends.
*
No opinion for publication.
1
'No property or interest therein of Germany, Japan, or any national of either such country vested in or transferred to any officer or agency of the Government at any time after December 17, 1941, pursuant to the provisions of this Act, shall be returned to former owners thereof or their successors in interest, and the United States shall not pay compensation for any such property or interest therein. The net proceeds remaining upon the completion of administration, liquidation, and disposition pursuant to the provisions of this Act of any such property or interest therein shall be covered into the Treasury at the earliest practicable date. Nothing in this section shall be construed to repeal or otherwise affect the operation of the provisions of section 32 of this Act or of the Philippine Property Act of 1946.' (Emphasis supplied.) 62 Stat. 1240, 1246 (1948), 50 U.S.C.App. (Supp. IV) § 39, 50 U.S.C.A.Appendix, § 39.
2
§ 5(E)(i), 6 Fed.Reg. 2897, 2898 (1941), 12 U.S.C.A. § 95a note.
3
55 Stat. 838, 840 (1941), 50 U.S.C.A.Appendix, § 617.
4
The Rapid, 1814, 8 Cranch 155, 161, 3 L.Ed. 520; White v. Burnley, 1858, 20 How. 235, 249, 15 L.Ed. 886; The Venice, 1865, 2 Wall. 258, 274, 17 L.Ed. 866; The Benito Estenger, 1900, 176 U.S. 568, 571, 20 S.Ct. 489, 490, 44 L.Ed. 592; Herrera v. United States, 1912, 222 U.S. 558, 569, 32 S.Ct. 179, 181, 56 L.Ed. 316.
5
Alien Enemy Act of 1798, 1 Stat. 577, now 50 U.S.C. § 21, 50 U.S.C.A. § 21. A similar definition of 'alien enemies' had also been used in the naturalization laws. 2 Stat. 153, 154 (1802), R.S. § 2171. In World War I, Congress specifically exempted 'alien enemies' from the draft, a context in which the term 'alien enemy' would be meaningless if it did not include nationals of enemy nations residing in this country. 40 Stat. 76—78, 885, 955 (1917 1918).
6
H.R.Rep.No.85, 65th Cong., 1st Sess. 2 (1917).
7
Ibid.; S.Rep.No.111, 65th Cong., 1st Sess. 2 (1917); 55 Cong.Rec. 4842 (1917). See Ex parte Kawato, 1942, 317 U.S. 69, 76 77, 63 S.Ct. 115, 119, 87 L.Ed. 58.
8
45 Stat. 254, 270—274 (1928), 50 U.S.C.App. §§ 9(b)(12) (14) and (16), 9(m), 50 U.S.C.A.Appendix, § 9(b)(12—14, 16), (m). Returns of German property were postponed in 1934 when it appeared that Gernany was in default in the payment of war claims. 48 Stat. 1267 (1934).
9
55 Stat. 838, 839 (1941), 50 U.S.C.App. § 5(b), 50 U.S.C.A.Appendix, § 5(b); S.Rep.No.911, 77th Cong., 1st Sess. 2 (1941). See Clark v. Uebersee Finanz-Korp., 1947, 332 U.S. 480, 68 S.Ct. 174, 177, 92 L.Ed. 880.
10
60 Stat. 50 (1946), 50 U.S.C.App. § 32(a)(2)(D), 50 U.S.C.A.Appendix, § 32(a)(2)(D).
11
H.R.Rep.No.976, 80th Cong., 1st Sess. 2 (1947).
12
Id., at 2—3.
13
Section 9(a) was originally designed to protect American citizens, S.Rep.No.111, 65th Cong., 1st Sess. 8 (1917), and apparently the bulk of the claims filed under § 9(a) are those of American citizens. Hearings before Senate Committee on the Judiciary on H.R. 4044, 80th Cong., 2d Sess. 44 (1948).
14
1946 patent legislation likewise conforms to this pattern. In 1921, Congress barred claims based upon World War I use of patent rights of an 'alien enemy.' 41 Stat. 1313, 1314, 35 U.S.C. § 86, 35 U.S.C.A. § 86. In 1946, Congress barred claims for patent infringement during World War II brought by a 'national' of an enemy country. 60 Stat. 940, 944, 35 U.S.C. § 111, 35 U.S.C.A. § 111. The failure to use the term 'enemy' was deliberate. The next section of the 1946 Act refers to 'rights of any enemy * * * as defined by the Trading With the Enemy Act * * *.' 60 Stat. 940, 944, 35 U.S.C. § 112, 35 U.S.C.A. § 112. And the bill as drafted in the House Committee on Patents, H.R.Rep.No. 1498, 79th Cong., 2d Sess. (1946), used the term 'national' as used in proposed bill H.R. 2111 (§ 9), rejecting the term 'alien enemy' as used in the 1921 legislation and in proposed bill H.R. 4079 (§ 10). This was done after the difference in meaning of the term was called to the attention of the Committee by the Office of Alien Property Custodian. Hearings before the House Committee on Patents on H.R. 2111 and H.R. 4079, 79th Cong., 1st Sess. 105 (1945).
15
Hearings before the Senate Committee on the Judiciary on H.R. 4044, 80th Cong., 2d Sess. 197—198, 233—234 (1948). See also id., at 254—255, and 94 Cong.Rec. 551 (1948).
16
Id., at 235.
17
Ex parte Kawato, 1942, 317 U.S. 69, 63 S.Ct. 115, 87 L.Ed. 58, in holding that an enemy alien's right of access to federal courts was not barred by common law or statute, did not touch upon the constitutional power of Congress over enemy property. The extension of that power to include property of an American citizen resident in an enemy country, The Venus, 1814, 8 Cranch 253, 3 L.Ed. 553, hardly supports a restriction of that power in case of petitioner, an enemy citizen present in an enemy country.
In Silesian-American Corp. v. Clark, 1947, 332 U.S. 469, 475, 68 S.Ct. 179, 182, 92 L.Ed. 81, the Court stated: 'There is no doubt but that under the war power (Art. I, § 8, cl. 11), as heretofore interpreted by this Court, the United States, acting under a statute, may vest in itself the property of a national of an enemy nation. Unquestionably to wage war successfully, the United States may confiscate enemy property. United States v. Chemical Foundation, (Inc.) 272 U.S. 1, 11, 47 S.Ct. 1, 4, 71 L.Ed. 131.' (Emphasis added.)
In discussing the requirement that just compensation be paid for seizure of property of 'friendly aliens,' the Court had obvious reference to the nationals of friendly nations. 332 U.S. at pages 475—476, 479—480, 68 S.Ct. at pages 181—184, 92 L.Ed. 81.
| 34
|
342 U.S. 350
72 S.Ct. 327
96 L.Ed. 392
BRIGGS et al.v.ELLIOTT et al.
No. 273.
Decided Jan. 28, 1952.
Harold R. Boulware, Columbia, S.C., Spottswood W. Robinson, III, Richmond, Va., Robert L. Carter, Thurgood Marshall, New York City (Arthur D. Shores, Birmingham, Ala., A. T. Walden, Atlanta, Ga., of counsel), for appellants.
S. E. Rogers, Summerton, S.C., Robert McC. Figg, Jr., Charleston, S.C., for appellees.
PER CURIAM.
1
Appellant Negro school children brought this action in the Federal District Court to enjoin appellee school officials from making any distinctions based upon race or color in providing educational facilities for School District No. 22, Clarendon County, South Carolina. As the basis for their complaint, appellants alleged that equal facilities are not provided for Negro pupils and that those constitutional and statutory provisions of South Carolina requiring separate schools 'for children of the white and colored races'1 are invalid under the Fourteenth Amendment. At the trial before a court of three judges, appellees conceded that the school facilities provided for Negro students 'are not substantially equal to those afforded in the District for white pupils.'
2
The District Court held, one judge dissenting, that the challenged constitutional and statutory provisions were not of themselves violative of the Fourteenth Amendment. The court below also found that the educational facilities afforded by appellees for Negro pupils are not equal to those provided for white children. The District Court did not issue an injunction abolishing racial distinctions as prayed by appellants, but did order appellees to proceed at once to furnish educational facilities for Negroes equal to those furnished white pupils. In its decree, entered June 21, 1951, the Distrct Court ordered that appellees report to that court within six months as to action taken by them to carry out the court's order. 98 F.Supp. 529.
3
Dissatisfied with the relief granted by the District Court, appellants brought a timely appeal directly to this Court under 28 U.S.C. (Supp. IV) § 1253, 28 U.S.C.A. § 1253. After the appeal was docketed but before its consideration by this Court, appellees filed in the court below their report as ordered.
4
The District Court has not given its views on this report, having entered an order stating that it will withhold further action thereon while the cause is pending in this Court on appeal. Prior to our consideration of the questions raised on this appeal, we should have the benefit of the views of the District Court upon the additional facts brought to the attention of that court in the report which it ordered. The District Court should also be afforded the opportunity to take whatever action it may deem appropriate in light of that report. In order that this may be done, we vacate the judgment of the District Court and remand the case to that court for further proceedings. Another judgment, entered at the conclusion of those proceedings, may provide the basis for any further appeals to this Court.
5
It is so ordered.
6
Judgment vacated and case remanded with directions.
7
Mr. Justice BLACK and Mr. Justice DOUGLAS dissent to vacation of the judgment of the District Court on the grounds stated. They believe that the additional facts contained in the report to the District Court are wholly irrelevant to the constitutional questions presented by the appeal to this Court, and that we should note jurisdiction and set the case down for argument.
1
S.C.Const. Art. XI, § 7; S.C.Code 1942, § 5377.
| 12
|
342 U.S. 337
72 S.Ct. 329
96 L.Ed. 367
BOYCE MOTOR LINES, Inc.v.UNITED STATES.
No. 167.
Argued Dec. 4, 1951.
Decided Jan. 28, 1952.
Mr. Archie O. Dawson, New York City, for petitioner.
Mr. Robert W. Ginnane, Washington, D.C., for respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
The petitioner is charged with the violation of a regulation promulgated by the Interstate Commerce Commission under 18 U.S.C. § 835, 18 U.S.C.A. § 835.1 The Regulation provides: 'Drivers of motor vehicles transporting any explosive, inflammable liquid, inflammable compressed gas, or poisonous gas shall avoid, so far as practicable, and, where feasible, by prearrangement of routes, driving into or through congested thoroughfares, places where crowds are assembled, street car tracks, tunnels, viaducts, and dangerous crossings.'2 The statute directs that '(w)hoever knowingly violates' the Regulation shall be subject to fine or imprisonment or both.3
2
The indictment, in counts 1, 3, and 5, charges that petitioner on three separate occasions sent one of its trucks carrying carbon bisulphide, a dangerous and inflammable liquid, through the Holland Tunnel, a congested thoroughfare. In each instance, the truck was en route from Cascade Mills, New York, to Brooklyn, New York. On the third of these trips the load of carbon bisulphide exploded in the tunnel and about sixty persons were injured. The indictment further states that 'there were other available and more practicable routes for the transportation of said shipment, and * * * the (petitioner) well knew that the transportation of the shipment of carbon bisulphide * * * into the * * * Holland Tunnel was in violation of the regulations promulgated * * * by the Interstate Commerce Commission. * * *'4 There is no allegation as to the feasibility of prearrangement of routes, and petitioner is not charged with any omission in that respect.
3
The District Court dismissed those counts of the indictment which were based upon the Regulation in question, holding it to be invalid on the ground that the words 'so far as practicable and where feasible' are 'so vague and indefinite as to make the standard of guilt conjectural.' 90 F.Supp. 996, 998. The Court of Appeals for the Third Circuit reversed, holding that the Regulation, interpreted in conjunction with the statute, establishes a reasonably certain standard of conduct. 3 Cir., 188 F.2d 889. We granted certiorari. 342 U.S. 846, 72 S.Ct. 75.
4
A criminal statute must be sufficiently definite to give notice of the required conduct to one who would avoid its penalties, and to guide the judge in its application and the lawyer in defending one charged with its violation.5 But few words possess the precision of mathematical symbols, most statutes must deal with untold and unforeseen variations in factual situations, and the practical necessities of discharging the business of government inevitably limit the specificity with which legislators can spell out prohibitions. Consequently, no more than a reasonable degree of certainty can be demanded. Nor is it unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line.6
5
In Sproles v. Binford, 1932, 286 U.S. 374, 52 S.Ct. 581, 587, 76 L.Ed. 1167, these principles were applied in upholding words in a criminal statute similar to those now before us. Chief Justice Hughes, speaking for a unanimous court, there said: "Shortest practicable route' is not an expression too vague to be understood. The requirement of reasonable certainty does not preclude the use of ordinary terms to express ideas which find adequate interpretation in common usage and understanding.
6
* * * The use of common experience as a glossary is necessary to meet the practical demands of legislation.'7
7
The Regulation challenged here is the product of a long history of regulation of yhe transportation of explosives and inflammables. Congress recognized the need for protecting the public against the hazards involved in transporting explosives as early as 1866.8 The inadequacy of the legislation then enacted led to the passage, in 1908, of the Transportation of Explosives Act,9 which was later extended to cover inflammables.10 In accordance with that Act, the Commission in the same year issued regulations applicable to railroads. In 1934 the Commission exercised its authority under the Act to promulgate regulations governing moor trucks, including the Regulation here in question.11 In 1940 this Regulation was amended to substantially its present terminology.12 That terminology was adopted only after more than three years of study and a number of drafts. The trucking industry participated extensively in this process, making suggestions relating to drafts submitted to carriers and their organizations, and taking part in several hearings. The Regulation's history indicates the careful consideration which was given to the difficulties involved in framing a regulation which would deal practically with this aspect of the problem presented by the necessary transportation of dangerous explosives on the highways.13
8
The statute punishes only those who knowingly violate the Regulation. This requirement of the presence of culpable intent as a necessary element of the offense does much to destroy any force in the argument that application of the Regulation would be so unfair that it must be held invalid.14 That is evident from a consideration of the effect of the requirement in this case. To sustain a conviction, the Government not only must prove that petitioner could have taken another route which was both commercially practicable and appreciably safer (in its avoidance of crowded thoroughfares, etc.) than the one it did follow. It must also be shown that petitioner knew that there was such a practicable, safer route and yet deliberately took the more dangerous route through the tunnel, or that petitioner willfully neglected to exercise its duty under the Regulation to inquire into the availability of such an alternative route.15
9
In an effort to give point to its argument, petitioner asserts that there was no practicable route its trucks might have followed which did not pass through places they were required to avoid. If it is true that in the congestion surrounding the lower Hudson there was no practicable way of crossing the River which would have avoided such points of danger to a substantially greater extent than the route taken, then petitioner has not violated the Regulation. But that is plainly a matter for proof at the trial. We are not so conversant with all the routes in that area that we may, with no facts in the record before us, assume the allegations of the indictment to be false.16 We will not thus distort the judicial notice concept to strike down a regulation adopted only after much consultation with those affected and penalizing only those who knowingly violate its prohibition.
10
We therefore affirm the judgment of the Court of Appeals remanding the cause to the District Court with directions to reinstate counts 1, 3, and 5 of the indictment.
11
Affirmed.
12
Mr. Justice JACKSON, with whom Mr. Justice BLACK and Mr. Justice FRANKFURTER join, dissenting.
13
Congress apparently found the comprehensive regulation needed for the transportation of explosives and inflammables too intricate and detailed for its own processes. It delegated the task of framing regulations to the Interstate Commerce Commission and made a knowing violation of them criminal. Where the federal crimemaking power is delegated to such a body, we are justified in requiring considerable precision in its exercise. Kraus & Bros. v. United States, 327 U.S. 614, 621—622, 66 S.Ct. 705, 707—708, 90 L.Ed. 894.
14
This regulation does not prohibit carriage of explosives. It presupposes that they must be transported, and, therefore, attempts to lay down a rule for choice of routings. Petitioner was admonished to avoid congested thoroughfares, places where crowds are assembled, streetcar tracks, tunnels, viaducts and dangerous crossings. Nobody suggests that it was possible to avoid all of these in carrying this shipment from its origin to its destination. Nor does the regulation require that all of any one of them be avoided except 'so far as practicable.' I do not disagree with the opinion of Chief Justice Hughes and the Court in Sproles v. Binford, 286 U.S. 374, 52 S.Ct. 581, 76 L.Ed. 1167, that, in the context in which it was used, "Shortest practicable route' is not an expression too vague to be understood.' A basic standard was prescribed with definiteness—distance. That ordinarily was to prevail, and, if departed from, the trucker was to be prepared to offer practical justifications.
15
But the regulation before us contains no such definite standard from which one can start in the calculation of his duty. It leaves all routes equally open and all equally closed. The carrier must choose what is 'practicable,' not, as in the Sproles case, by weighing distance against obstacles to passage. We may, of course, take judicial notice of geography. Delivery of these goods was impossible except by passing through many congested thoroughfares and either tunnels, viaducts or bridges. An explosion would have been equally dangerous and equally incriminating in any of them. What guidance can be gleaned from this regulation as to how one could with reasonable certainty make a choice of routes that would comply with its requirements?
16
It is said, however, that definiteness may be achieved on the trial because expert testimony will advise the jury as to what routes are preferable. Defects in that solution are twofold: first, there is no standard by which to direct, confine and test the expert opinion testimony and, second, none to guide a jury in choosing between conflicting expert opinions.
17
It is further suggested that a defendant is protected against indefiniteness because conviction is authorized only for knowing violations. The argument seems to be that the jury can find that defendant knowingly violated the regulation only if it finds that it knew the meaning of the regulation he was accused of violating. With the exception of Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495, which rests on a very particularized basis, the knowledge requisite to knowing violation of a statute is factual knowledge as distinguished from knowledge of the law. I do not suppose the Court intends to suggest that if petitioner knew nothing of the existence of such a regulation its ignorance would constitute a defense.
18
This regulation prescribes no duty in terms of a degree of care that must be exercised in moving the shipment. The utmost care would not protect defendant from prosecution under it. One can learn his duty from such terms as 'reasonable care' or 'high degree of care.' Of course, one may not be sure whether a trier of fact will find particular conduct to measure up to the requirements of the law, but he may learn at least what he must strive for, and that is more than he can learn from this regulation.
19
This question is before this Court on the indictment only. In some circumstances we might feel it better that a case should proceed to trial and our decision be reserved until a review of the conviction, if one results. But a trial can give us no better information than we have now as to whether this regulation contains sufficiently definite standards and definition of the crime. An acquittal or disagreement would leave this unworkable, indefinite regulation standing as the only guide in a matter that badly needs intelligible and rather tight regulation. It would remain, at least to some extent, as an incoherent barrier against state enactment or enforcement of local regulations of the same subject. Would it not be in the public interest as well as in the interest of justice to this petitioner to pronounce this vague regulation invalid, so that those who are responsible for the supervision of this dangerous traffic can go about the business of framing a regulation that will specify intelligible standards of conduct?
1
18 U.S.C. § 835, 18 U.S.C.A. § 835:
'The Interstate Commerce Commission shall formulate regulations for the safe transportation within the limits of the jurisdiction of the United States of explosives and other dangerous articles, including flammable liquids, flammable solids, oxidizing materials, corrosive liquids, compressed gases, and poisonous substances, which shall be binding upon all common carriers engaged in interstate or foreign commerce which transport explosives or other dangerous articles by land, and upon all shippers making shipments of explosives or other dangerous articles via any common carrier engaged in interstate or foreign commerce by land or water.
'Such regulations shall be in accord with the best-known practicable means for securing safety in transit, covering the packing, marking, loading, handling while in transit, and the precautions necessary to determine whether the material when offered is in proper condition to transport.'
2
49 CFR § 197.1(b).
3
'Whoever knowingly violates any such regulation shall be fined not more than $1,000 or imprisoned not more than one year, or both; and, if the death or bodily injury of any person results from such violation, shall be fined not more than $10,000 or imprisoned not more than ten years, or both.' 18 U.S.C § 835, 18 U.S.C.A. § 835 (sixth paragraph).
4
R. 2.
5
Lanzetta v. New Jersey, 1939, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888.
6
Nash v. United States, 1913, 229 U.S. 373, 377, 33 S.Ct. 780, 781, 57 L.Ed. 1232; Hygrade Provision Co. v. Sherman, 1925, 266 U.S. 497, 502—503, 45 S.Ct. 141, 142—143, 69 L.Ed. 402; United States v. Petrillo, 1947, 332 U.S. 1, 7—8, 67 S.Ct. 1538, 1541 1542, 91 L.Ed. 1877.
7
Sproles v. Binford, 1932, 286 U.S. 374, 393, 52 S.Ct. 581, 586, 76 L.Ed. 1167. The provision which was there challenged and upheld was concerned basically with a requirement as to distance, a requirement applying within necessary limits of practicability, just as the Regulation here challenged is concerned basically with avoidance of designated points of danger, within like limits of practicability.
8
14 Stat. 81.
9
35 Stat. 554, as amended, 35 Stat. 1134.
10
41 Stat. 1444.
11
49 CFR, 1938, § 85.34(b); see Regulations for Transportation of Explosives, 211 I.C.C. 351, 354 (1935).
12
49 CFR, 1940 Supp., § 197—7.3082: 'Drivers of motor vehicles transporting inflammable liquids shall avoid, so far as practicable, driving into or through congested thoroughfares, places where crowds are assembled, street car tracks, tunnels, viaducts and dangerous crossings. So far as practicable, this shall be accomplished by prearrangement of routes.' The section was amended to its present form in 1942. 7 Fed.Reg. 2869.
13
Compare United States v. Petrillo, 1947, 332 U.S. 1, 7, 67 S.Ct. 1538, 1541, 91 L.Ed. 1877; Miller v. Strahl, 1915, 239 U.S. 426, 434, 36 S.Ct. 147, 149, 60 L.Ed. 364; Baltimore & Ohio R. Co. v. Interstate Commerce Comm., 1911, 221 U.S. 612, 620, 31 S.Ct. 621, 625, 55 L.Ed. 878,
14
Screws v. United States, 1945, 325 U.S. 91, 101—103, 65 S.Ct. 1031, 1035—1036, 89 L.Ed. 1495; United States v. Ragen, 1942, 314 U.S. 513, 524, 62 S.Ct. 374, 378, 86 L.Ed. 383; Gorin v. United States, 1941, 312 U.S. 19, 27—28, 61 S.Ct. 429, 433—434, 85 L.Ed. 488; Omaechevarria v. State of Idaho, 1918, 246 U.S. 343, 348, 38 S.Ct. 323, 325, 62 L.Ed. 763.
15
The officers, agents, and employees of every motor carrier concerned with the transportation of explosives and other dangerous articles are required to 'become conversant' with this and other regulations applying to such transportation. 49 CFR § 197.02.
16
This case is here to review the granting of a motion to dismiss the indictment. It should not be necessary to mention the familiar rule that, at this stage of the case, the allegations of the indictment must be taken as true.
| 78
|
342 U.S. 347
72 S.Ct. 326
96 L.Ed. 390
UNITED STATES ex rel. JAEGELERv.CARUSI, Commissioner of Immigration and Naturalization, et al.
No. 275.
Argued Jan. 7, 1952.
Decided Jan. 28, 1952.
Mr. Gordon Butterworth, Philadelphia, Pa., for petitioner.
Mr. Samuel D. Slade, Washington, D.C., for respondents.
PER CURIAM.
1
On February 1, 1942, pursuant to the Alien Enemy Act of 1798, as amended,1 the Attorney General of the United States interned petitioner, a German citizen residing in this country. On May 3, 1946, acting under the same statute, the Attorney General directed petitioner's removal to Germany. Thereafter, petitioner applied for a writ of habeas corpus in the District Court for the Eastern District of Pennsylvania, and on October 9, 1950, after hearings, the District Court denied relief. The Court of Appeals for the Third Circuit affirmed, 187 F.2d 912, and petitioner applied to this Court for a writ of certiorari on August 24, 1951.
2
While that petition was under consideration by the Court, a joint resolution of Congress, approved on October 19, 1951, terminated the state of war which had existed between the United States and Germany. 65 Stat. 451. We granted certiorari. 1951, 342 U.S. 864, 72 S.Ct. 106.
3
The statutory power of the Attorney General to remove petitioner as an enemy alien ended whch Congress terminated the war with Germany.2 Thus petitioner is no longer removable under the Alien Enemy Act.
4
The judgment of the Court of Appeals is vacated and the cause is remanded to the District Court with directions to vacate its judgment and direct petitioner's release from custody.
5
Judgment of Court of Appeals vacated and cause remanded to District Court with directions.
6
It is so ordered.
7
Mr. Justice CLARK took no part in the consideration or disposition of this case.
1
'Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies. The President is authorized, in any such event, by his proclamation thereof, or other public act, to direct the conduct to be observed, on the part of the United States, toward the aliens who become so liable; the manner and degree of the restraint to which they shall be subject and in what cases, and upon what security their residence shall be permitted, and to provide for the removal of those who, not being permitted to reside within the United States, refuse or neglect to depart therefrom; and to establish any other regulations which are found necessary in the premises and for the public safety.' 1 Stat. 577, as amended, 50 U.S.C. § 21, 50 U.S.C.A. § 21.
The Attorney General acted under Presidential Proclamation No. 2526, 55 Stat. 1705, 6 Fed.Reg. 6323, and Presidential Proclamation No. 2655, 59 Stat. 870, 10 Fed.Reg. 8947.
2
'Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the state of war declared to exist between the United States and the Government of Germany by the joint resolution of Congress approved December 11, 1941, is hereby terminated and such termination shall take effect on the date of enactment of this resolution: Provided, however, That notwithstanding this resolution and any proclamation issued by the President pursuant thereto, any property or interest which prior to January 1, 1947, was subject to vesting or seizure under the provisions of the Trading With the Enemy Act of October 6, 1917 (40 Stat. 411), as amended, or which has heretofore been vested or seized under that Act, including accruals to or proceeds of any such property or interest, shall continue to be subject to the provisions of that Act in the same manner and to the same extent as if this resolution had not been adopted and such proclamation had not been issued. Nothing herein and nothing in such proclamation shall alter the status, as it existed immediately prior hereto, under that Act of Germany or of any person with respect to any such property or interest.' H.J.Res. 289, 82d Cong., 1st Sess., 65 Stat. 451, 50 U.S.C.A.Appendix, p. XX.
| 12
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342 U.S. 299
72 S.Ct. 321
96 L.Ed. 335
GEORGIA RAILROAD & BANKING CO.v.REDWINE, State Revenue Commissioner.
No. 1.
Reargued Nov. 26, 1951.
Decided Jan. 28, 1952.
Mr. Furman Smith, Atlanta, Ga., for appellant.
Mr. M. H. Blackshear, Dublin, Ga., for appellee.
Mr. Chief Justice VINSON delivered the opinion of the Court.
1
Appellant was incorporated in 1833 by a Special Act of the Georgia General Assembly that included a provision for exemption from taxation.1 In 1945, the Georgia Constitution was amended to provide that 'All exemptions from taxation heretofore granted in corporate charters are declared to be henceforth null and void.'2 According to appellant's complaint, appellee, who is State Revenue Commissioner, is threatening to act pursuant to this amendment by proceeding against appellant for the collection of ad valorem taxes for the year 1939, and all subsequent years, on behalf of the State and every county, school district and municipality through which appellant's lines run.3 Appellant claims that this threatened taxation would be contrary to its legislative charter and would impair the obligation of contract between appellant and the State of Georgia, contrary to Article I, Section 10 of the Federal Constitution.4
2
This latest phase5 of appellant's frequent litigation over the tax exemption provision of its 1833 charter began when appellant filed suit against appellee's predecessor in a Georgia state court seeking injunctive and declaratory relief. Relief was denied without reaching the merits of appellant's claim when the Georgia Supreme Court held that the action was, in effect, an unconsented suit against the State which could not be maintained in the state courts. Musgrove v. Georgia Railroad & Banking Co., 1948, 204 Ga. 139, 49 S.E.2d 26. We dismissed an appeal from that judgment because it was based upon a nonfederal ground adequate to support it. 1049, 335 U.S. 900, 69 S.Ct. 407, 93 L.Ed. 435.
3
Thereafter, appellant filed this action in the District Court to enjoin appellee from assessing or collecting ad valorem taxes contrary to its legislative charter. Appellant also asked that appellee's threatened acts be adjudged in violation of prior decree also entered by the court below and affirmed by this Court. Wright v. Georgia Railroad & Banking Co., 1910, 216 U.S. 420, 30 S.Ct. 242, 54 L.Ed. 544. A court of three judges6 dismissed appellant's complaint for want of jurisdiction, holding that the State of Georgia had not submitted itself to the jurisdiction of the court so as to be barred by the Wright decree and that this action against appellee is in effect an unconsented suit against the State prohibited by the Eleventh Amendment.7 D.C.1949, 85 F.Supp. 749.
4
The Attorney General of Georgia stated at the bar of this Court that 'plain, speedy and efficient' state remedies were available to appellant, particularly by appeal from an assessment by appellee. We ordered the cause continued to enable appellant to assert such remedies. 1950, 339 U.S. 901, 70 S.Ct. 472, 94 L.Ed. 1331. After the District Court modified the restraining order which it had entered pending appeal to permit assessment, appellee held appellant liable for the full ad valorem tax and appellant appealed to the state courts. The Georgia Supreme Court dismissed the appeal for want of jurisdiction, holding that such remedy was not available to appellant. Georgia Railroad & Banking Co. v. Redwine, 1951, 208 Ga. 261, 66 S.E.2d 234. Following this decision, appellant moved for termination of the continuance of its appeal in this Court and we ordered reargument.
5
First. On reargument, the Attorney General of Georgia again maintained that 'plain, speedy and efficient' remedies were available to appellant in the state courts. If so, the District Court is without jurisdiction under 28 U.S.C. (Supp. IV) § 1341, 28 U.S.C.A. § 1341.8 The remedies now suggested are: (1) suit for injunction in the Superior Court of Fulton County, Georgia; (2) arresting tax execution by affidavits of illegality; and (3) suing the State for refund after payment of taxes. The first route was tried by appellant without success in the Musgrove litigation, supra. The second remedy, the present availability of which was doubted by the three Justices of the Georgia Supreme Court that considered the matter in the appeal case,9 would require the filing of over three hundred separate claims in fourteen different counties to protect the single federal claim asserted by appellant.10 The third remedy, suit for refund after payment, is applicable only to taxes payable directly to the State and amounting to less than 15% of the total taxes in controversy.11 We cannot say that the remedies suggested by the Attorney General afford appellant the 'plain, speedy and efficient remedy' necessary to deprive the District Court of jurisdiction under 28 U.S.C. (Supp. IV) § 1341, 28 U.S.C.A. § 1341.
6
Second. Passing to the jurisdictional ground upon which the District Court rested its decision, we note that the State of Georgia was not named as a party in the District Court. But, since appellee is a state officer, the court below properly considered whether the relief sought against the officer is not, in substance, sought against the sovereign.12 If this action is, in effect, an unconsented suit against the State, the action is barred.13
7
The District Court characterized appellant's action as one to enforce an alleged contract with the State of Georgia, and, as such, a suit against the State. But appellant's complaint is not framed as a suit for specific performance. It seeks to enjoin appellee from collecting taxes in violation of appellant's rights under the Federal Constitution. This Court has long held that a suit to restrain unconstitutional action threatened by an individual who is a state officer is not a suit against the State.14 These decisions were reexamined and reaffirmed in Ex parte Young, 1908, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, and have been consistently followed to the present day.15 This general rule has been applied in suits against individuals threatening to enforce allegedly unconstitutional taxation, including cases where, as here, it is alleged that taxation would impair the obligation of contract. Gunter v. Atlantic Coast Line R. Co., 1906, 200 U.S. 273, 26 S.Ct. 252, 50 L.Ed. 477; Pennoyer v. McConnaughy, 1891, 140 U.S. 1, 11 S.Ct. 699, 35 L.Ed. 363; Allen v. Baltimore & O.R. Co., 1885, 114 U.S. 311, 330, 5 S.Ct. 925, 962, 29 L.Ed. 200, 207.
8
In re Ayers, 1887, 123 U.S. 443, 8 S.Ct. 164, 31 L.Ed. 216, relied upon below, is not a contrary holding. In that case, complainant had not alleged that officers threatened to tax its property in violation of its constitutional rights. As a result, the Court held the action barred as one in substance directed at the State merely to obtain specific performance of a contract with the State.16 Since appellant seeks to enjoin appellee from a threatened and allegedly unconstitutional invasion of its property, we hold that this action against appellee as an individual is not barred as an unconsented suit against the State.17 The State is free to carry out its functions without judicial interference directed at the sovereign or its agents, but this immunity from federal jurisdiction does not extend to individuals who act as officers without constitutional authority.
9
Accordingly, we find that the District Court was not deprived of jurisdiction in this case on either the ground that it is a suit against the State or that 'plain, speedy and efficient' remedies are available to appellant in the state courts. Since the District Court did not determine whether appellee was bound by the Wright decree and did not address itself to the merits of appellant's claim, we do not pass upon these questions but remand the case to the District Court for further proceedings.
10
Reversed and remanded.
11
Mr. Justice DOUGLAS, concurring.
12
It is my view that appellant's suit is in reality against the State of Georgia to enjoin a breach of contract. It is the same contract that was involved in Wright v. Georgia R. & Banking Co., 216 U.S. 420, 30 S.Ct. 242, 54 L.Ed. 544. In that case the Court held that the Contract Clause of the Constitution barred Georgia from breaching her agreement granting appellant tax immunity by legislative act.
13
The suit in the Wright case was against a state officer. But the Attorney General appeared and defended the case on the merits. It is clear to me that the Attorney General represented and spoke for the interests of Georgia in the lower court and in this Court. The Georgia Constitution and statutes authorized the Governor to allow the Attorney General to defend suits involving the State's interests. See Ga.Code of 1895, §§ 23, 220; Ga.Const. of 1877, Art. VI, § X, par. II, Code, § 2—3802. The decree that was entered adjudicated the rights of Georgia, declaring her bound by the contract, stating that the Acts of the Georgia Legislature involved in the litigation were 'a valid and binding contract between the State of Georgia' and the present appellant. There were no special circumstances, as in Land v. Dollar, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209, that would keep the suit from being res judicata against the State.
14
I would conclude that Georgia is bound by the decree in the Wright case. Therefore, relief is now available in the form of an ancillary exercise of the District Court's equity jurisdiction to protect appellant's rights secured under the prior decree. Gunter v. Atlantic Coast Line R. Co., 200 U.S. 273, 26 S.Ct. 252, 50 L.Ed. 477.
1
Ga.Laws 1833, pp. 256, 264.
2
Ga.Const. Art. I, § III, par. III. See Ga.Laws 1945, No. 34, pp. 8, 14.
3
Ga.Code Ann.1937, cc. 92—26, 92—27, 92—28, as amended, contains the taxation provisions which appellee is allegedly threatening to invoke against appellant.
4
'No State shall * * * pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, * * *.' U.S.Const. Art. I, § 10, cl. 1.
5
The cases concerning this exemption that have reached this Court are collected in Atlantic Coast Line R. Co. v. Phillips, 1947, 332 U.S. 168, 173, 67 S.Ct. 1584, 1587, 91 L.Ed. 1977.
6
Required under 28 U.S.C. (Supp. IV) §§ 2281, 2284, 28 U.S.C.A. §§ 2281, 2284. Query v. United States, 1942, 316 U.S. 486, 62 S.Ct. 1122, 86 L.Ed. 1616.
7
'The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State or by Citizens or Subjects of any Foreign State.' U.S.Const. Amend. XI.
8
'The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.'
9
208 Ga. at page 272, 66 S.E.2d at page 241.
10
Compare Greene v. Louisville & Interurban R. Co., 1917, 244 U.S. 499, 520, 37 S.Ct. 673, 61 L.Ed. 1280, with Matthews v. Rodgers, 1932, 284 U.S. 521, 529—530, 52 S.Ct. 217, 221, 76 L.Ed. 447. See also Graves v. Texas Co., 1936, 298 U.S. 393, 403, 56 S.Ct. 818, 822, 80 L.Ed. 1236.
11
An adequate remedy as to only a portion of the taxes in controversy does not deprive the federal court of jurisdiction over the entire controversy. Greene v. Louisville & Interurban R. Co., note 10, supra. See Hillsborough v. Cromwell, 1946, 326 U.S 620, 629, 66 S.Ct. 445, 452, 90 L.Ed. 358.
It was also suggested that appellant's federal claim could be raised in defense to a suit brought by appellee to recover taxes, but this is hardly a remedy that could have been invoked by appellant.
12
Larson v. Domestic & Foreign Commerce Corp., 1949, 337 U.S. 682, 687—688, 69 S.Ct. 1457, 1460, 93 L.Ed. 1628; In re Ayers, 1887, 123 U.S. 443, 8 S.Ct. 164, 31 L.Ed. 216.
13
Appellant is incorporated in Georgia and a suit by it against the State of Georgia is not expressly barred by the language of the Eleventh Amendment. Nevertheless, a federal court may not entertain the action if it is a suit against the State. Hans v. Louisiana, 1890, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842.
14
Gunter v. Atlantic Coast Line R. Co., 1906, 200 U.S. 273, 26 S.Ct. 252, 50 L.Ed. 477; Prout v. Starr, 1903, 188 U.S. 537, 23 S.Ct. 398, 47 L.Ed. 584; Smyth v. Ames, 1898, 169 U.S. 466, 518 519, 18 S.Ct. 418, 423, 42 L.Ed. 819; Tindal v. Wesley, 1897, 167 U.S. 204, 17 S.Ct. 770, 42 L.Ed. 137; Reagan v. Farmers' Loan & Trust Co., 1894, 154 U.S. 362, 14 S.Ct. 1047, 38 L.Ed. 1014; Pennoyer v. McConnaughy, 1891, 140 U.S. 1, 11 S.Ct. 699, 35 L.Ed. 363, and numerous cases cited therein.
15
Alabama P.S.C. v. Southern R. Co., 1951, 341 U.S. 341, 344, 71 S.Ct. 762, 765, 95 L.Ed. 1002; Sterling v. Constantin, 1932, 287 U.S. 378, 393, 53 S.Ct. 190, 193, 77 L.Ed. 375, and cases cited therein; Greene v. Louisville & Interurban R. Co., note 10, supra, 244 U.S. at page 507, 37 S.Ct. 677, and cases cited therein. See Larson v. Domestic & Foreign Commerce Corp., note 12, supra, 337 U.S. at pages 690—691, 704, 69 S.Ct. 1462, 1468.
Appellant in this case merely seeks the cessation of appellee's allegedly unconstitutional conduct and does not request affirmative action by the State. Compare Ford Motor Co. v. Department of Treasury, 1945, 323 U.S. 459, 462—463, 65 S.Ct. 347, 649—350, 89 L.Ed. 389; Great Northern Life Ins. Co. v. Read, 1944, 322 U.S. 47, 50—51, 64 S.Ct. 873, 874—875, 88 L.Ed. 1121; State of North Carolina v. Temple, 1890, 134 U.S. 22, 10 S.Ct. 509, 33 L.Ed. 849; Hagood v. Southern, 1886, 117 U.S. 52, 6 S.Ct. 608, 29 L.Ed. 805.
16
That there is no inconsistency between the decision in Ayers and the cases above cited is shown by the careful differentiation of Allen v. Baltimore & O.R. Co., supra, an opinion also written by Mr. Justice Matthews. See also Pennoyer v. McConnaughy, note 14, supra.
17
The fact that the Georgia Supreme Court has considered that appellee acts with official immunity does not, of course, impart immunity from responsibility to the supreme federal authority. Ex parte Young, supra, 209 U.S. at page 167, 28 S.Ct. 457. See also Graves v. Texas Co., note 10, supra, 298 U.S. at pages 403—404, 56 S.Ct. 822—823.
We do not find it necessary to consider whether the State of Georgia had submitted itself to the jurisdiction of the District Court in the Wright litigation. Unlike Gunter v. Atlantic Coast Line R. Co., supra, where additional parties were brought into the second action, appellant has limited its complaint to a request for relief against appellee alone.
| 89
|
342 U.S. 330
72 S.Ct. 334
96 L.Ed. 359
CITIES SERVICE CO. et al.v.McGRATH, Attorney General.
No. 305.
Argued Jan. 2, 3, 1952.
Decided Jan. 28, 1952.
Mr. Timothy N. Pfeiffer, New York City, for petitioners.
Mr. George B. Searls, Washington, D.C., for respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
In this suit the Attorney General of the United States as successor to the Alien Property Custodian1 seeks payment by petitioners of two 5% gold debentures of the face value of $1,000 each and payable to bearer. Petitioner Cities Service Company is obligor on the debentures and petitioner Chase National Bank of New York is the indenture trustee. The obligations represented by these debentures had previously been vested, under provisions of the Trading with the Enemy Act,2 upon a finding that the obligations were owned by a resident and national of Germany.3 Neither of the debentures is or ever has been in the possession of respondent. One of the debentures, although not maturing until 1969, was presented for redemption at Chase's offices in New York City on January 5, 1950, subsequent to the date of the vesting order. A legend was then typed on the debenture reciting the issuance of the vesting order and the claims of respondent thereunder. This debenture is at present in the possession of a brokerage house in New York City.4 The other debenture matured in 1950 but has never been presented for payment. Its whereabouts are unknown but it was last reported to be in Berlin in the hands of the Russians.5
2
The District Court granted summary judgment for petitioners on the ground that the Attorney General, in issuing the vesting order in question, had exceeded his authority to vest property 'within the United States'.6 93 F.Supp. 408. The Court felt that the obligations represented by the debentures were inseparable from the certificates themselves, which, insofar as is known, were outside this country at the time of vesting. The Court of Appeals reversed and directed summary judgment for respondent, holding that the Act authorized the seizure and enforcement of obligations evidenced by debentures outside the country so long as the obligor is within the United States. 2 Cir., 189 F.2d 744, 747. In reaching this result, the Court of Appeals indicated that petitioners would have a 'claim against the Treasury for recoupment' in the event of a subsequent recovery against them in a foreign court by a bona fide holder of the debentures. Otherwise, the Court felt, the vesting order would take petitioners' property in violation of the Fifth Amendment. 189 F.2d at pages 747—749. We granted certiorari, 342 U.S. 865, 72 S.Ct. 109, 96 L.Ed.—.
3
We believe that the Trading with the Enemy Act grants the authority necessary to vest obligations evidenced by domestic negotiable bearer debentures even though the debentures themselves are outside the United States. By § 7(c) of the Act, enacted during World War I, the President is given the authority to seize all enemy property, 'including * * * choses in action, and rights and claims of every character and description owing or belonging to * * * an enemy * * *.' At the beginning of World War II, Congress made an even broader grant of authority to the Executive through an amendment to § 5(b), providing that 'any property or interest of any foreign country or national thereof shall vest, when, as, and upon the terms, directed by the President * * *.' See Markham v. Cabell, 1945, 326 U.S. 404, 411, 66 S.Ct. 193, 196, 90 L.Ed. 165; Silesian-American Corp. v. Clark, 1947, 332 U.S. 469, 479, 68 S.Ct. 179, 183, 92 L.Ed. 81; Clark v. Uebersee Finanz-Korp., 1947, 332 U.S. 480, 485—486, 68 S.Ct. 174, 176, 92 L.Ed. 880. That the obligations represented by negotiable bearer debentures come within these broad terms is beyond question.
4
Petitioners urge, however, that the debentures themselves constitute the debt, and since the debentures were located outside of the United States at the time of vesting, the debts did not have a situs within the United States and therefore were not proper subjects of seizure. To apply this fiction here would not only provide a sanctuary for enemy investments and defeat the recovery of American securities looted by conquering forces; it would also restrict the exercise of the war powers of the United States. Congress did not so intend. The Custodian's authority to reach a debenture or bonded indebtedness without seizure of the instrument itself is explicitly recognized by § 9(n) of the Act, which provides that '(i)n the case of property consisting * * * of bonded or other indebtedness * * *, evidenced * * * by bonds or by other certificates of interest * * * or indebtedness * * *, where the right, title, and interest in the property (but not the actual * * * bond or other certificate of interest or indebtedness) was conveyed, transferred, assigned, delivered, or paid to the Alien Property Custodian, or seized by him * * *,' then the President may, in proper cases, order return of 80% of the property.7 Moreover, in giving the Custodian this power to seize an interest represented by a cond or debenture without seizure of the actual instrument, Congress transgressed no constitutional limitations on its jurisdiction. As the Court of Appeals pointed out, the obligor, Cities Service Company, is within the United States and the obligation of which the debenture is evidence can be effectively dealt with through the exercise of jurisdiction over that petitioner. See Standard Oil Co. v. New Jersey, 1951, 341 U.S. 428, 438—439, 71 S.Ct. 822, 828, 95 L.Ed. 1078.
5
A more serious question is whether application of the seizure provisions of the Act to petitioners will take their property in violation of the Fifth Amendment, unless they have a remedy against the United States in the event a foreign court holds them liable to a holder in due course of the debentures. While petitioners concede that the Act discharges them from liability in any court in the United States,8 they contend that they have extensive properties over the world which subject them to foreign suits from which the Act affords no certain protection. Petitioners readily admit that the court of the country in which suit is brought may apply the laws of the United States and recognize their prior payment to the Attorney General as a complete defense; and that the holder, if qualified, might file a claim under the Act. Nevertheless, they insist, there remains at least the possibility that they will be exposed to liability in a foreign court. While their defense to such litigation seems adequate and final payment by them improbable, we agree that petitioners might suffer judgment the payment of which would effect a double recovery against them. In that event, petitioners will have the right to recoup from the United States, for a 'taking' of their property within the meaning of the Fifth Amendment, 'just compensation' to the extent of their double liability.9 Such cause of action will accrue when, as, and if a foreign court foreces petitioners when, as, and if a foreign court forces petitioners the debentures. We agree with the Court of Appeals that only with this assurance against double liability can it fairly be said that the present seizure is not itself an unconstitutional taking of petitioners' property.
6
Affirmed.
7
Mr. Justice REED, with whom Mr. Justice MINTON joins, concurring.
8
We concur in the result and in the opinion except as to its declaration that petitioners will be able to recoup just compensation from the United States should they suffer a judgment effecting a second recovery against them.
9
In our view there is no present taking of the property of Cities Service, but only of the money due from Cities Service to the foreign bondholder on maturity of the obligation. Standard Oil Co. v. New Jersey, 341 U.S. 428, 71 S.Ct. 822, 95 L.Ed. 1078. It may be that if Cities Service is later required to pay a claimant other than the Alien Property Custodian, it will have a claim against the United States for satisfaction of its expenditure. Determination that the United States owes such an obligation should await development of the circumstances of a second judgment. Direction Der Disconto-Gesellschaft v. U.S. Steel Corp., D.C., 300 F. 741, 743; Id., 267 U.S. 22, 29, 45 S.Ct. 207, 208, 69 L.Ed. 495.
1
The powers and functions of the Alien Property Custodian were transferred to the Attorney General by Exec. Order No. 9788, Oct. 14, 1946, 11 Fed.Reg. 11981, 50 U.S.C.A.Appendix, § 6 note. The terms 'Custodian' and 'Attorney General' are used interchangeably in this opinion.
2
40 Stat. 411, as amended, 50 U.S.C.App. § 1 et seq., 50 U.S.C.A.Appendix, § 1 et seq.
3
Vesting Order No. 12960, March 11, 1949, 14 Fed.Reg. 1405. The vesting order recited that the obligations were 'owned or controlled by, payable or deliverable to, held on behalf of or on account of, or owing to, or (were) evidence of ownership or control by,' the specified resident and national of Germany.
4
With respect to this debenture, the Attorney General seeks payment by petitioners of the proceeds of redemption plus accrued interest; or, in the alternative, the issuance to him of a new debenture of the same series and for the same face value, and with the same number of unpaid interest coupons attached.
5
With respect to this debenture, the Attorney General seeks payment of the redemption proceeds plus accrued interest.
6
By § 2(c) of Exec. Order No. 9095, March 11, 1942, 7 Fed.Reg. 1971, as amended by Exec. Order No. 9193, July 6, 1942, 7 Fed.Reg. 5205, and Exec. Order No. 9567, June 8, 1945, 10 Fed.Reg. 6917, 50 U.S.C.A.Appendix, § 6 note, the President, acting pursuant to the Trading with the Enemy Act, as amended, delegated to the Attorney General authority to vest property 'within the United States' owned by a designated enemy country or national thereof, with specified exceptions not relevant here. Assuming, without deciding, that this language is narrower than the language of §§ 5(b) and 7(c) of the Act, as amended, we need not decide which language is controlling. For, as indicated below, we believe that in any event the obligations vested here were 'within the United States' and thus come within the presumably narrower terms of the Executive Order.
7
Section 9(n) was added in 1928 by the Settlement of War Claims Act, 45 Stat. 254, which provided in general for the return of 80% of all seized property. The purpose of § 9(n) was to authorize the President, where he had seized a stock or bond interest without seizing the instrument itself, to make such 80% return to the current holder of the instrument. See H.R.Rep. No. 17, 70th Cong., 1st Sess. 21; S.Rep. No. 273, 70th Cong., 1st Sess. 30.
8
See §§ 5(b)(2) and 7(e).
9
Such recovery will not be prevented by § 7(c) of the Act. That subsection provides in part: 'The sole relief and remedy of any person having any claim to any money or other property heretofore or hereafter conveyed, transferred, assigned, delivered, or paid over to the Alien Property Custodian, or required so to be, or seized by him shall be that provided by the terms of this Act * * *.' Petitioners, however, will not be claiming 'any money or other property * * * conveyed, transferred, assigned, delivered, or paid over to the Alien Property Custodian, or required so to be, or seized by him * * *.' Rather they will be claiming just compensation under the Fifth Amendment for a taking of their property. Therefore the provision quoted above will not apply to them.
| 34
|
342 U.S. 382
72 S.Ct. 309
96 L.Ed. 427
STANDARD OIL CO.v.PECK, Tax Commissioner, State of Ohio, et al.
No. 184.
Argued Jan. 3, 4, 1952.
Decided Feb. 4, 1952.
Messrs. Isador Grossman, Rufus S. Day, Jr., Cleveland, Ohio, for appellant.
Mr. Isadore Topper, Columbus, Ohio, for appellees.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Appellant, an Ohio corporation, owns boats and barges which it employs for the transportation of oil along the Mississippi and Ohio Rivers. The vessels neither pick up oil nor discharge it in Ohio. The main terminals are in Tennessee, Indiana, Kentucky, and Louisiana. The maximum river mileage traversed by the boats and barges on any trip though waters bordering Ohio was 17 1/2 miles. These 17 1/2 miles were in the section of the Ohio River which had to be traversed to reach Bromley, Kentucky. While this stretch of water bordered Ohio, it was not necessarily within Ohio. The vessels were registered in Cincinnati, Ohio, but only stopped in Ohio for occasional fuel or repairs. These stops were made at Cincinnati; but none of them involved loading or unloading cargo.
2
The Tax Commissioner of Ohio, acting under §§ 5325 and 5328 of the Ohio General Code, levied an ad valorem personal property tax on all of these vessels. The Board of Tax Appeals affirmed (with an exception not material here), and the Supreme Court of Ohio sustained the Board, 155 Ohio St. 61, 98 N.E.2d 8, over the objection that the tax violated the Due Process Clause of the Fourteenth Amendment. The case is here on appeal. 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2).
3
Under the earlier view governing the taxability of vessels moving in the inland waters, City of St. Louis v. Wiggins Ferry Co., 11 Wall. 423, 20 L.Ed. 192; Ayer & Lord Tie Co. v. Kentucky, 202 U.S. 409, 26 S.Ct. 679, 50 L.Ed. 1082; cf. Old Dominion S.S. Co. v. Commonwealth of Virginia, 198 U.S. 299, 25 S.Ct. 686, 49 L.Ed. 1059, Ohio, the state of the domicile, would have a strong claim to the whole of the tax that has been levied. But the rationale of those cases was rejected in Ott v. Mississippi Barge Line Co., 336 U.S. 169, 69 S.Ct. 432, 93 L.Ed. 585, where we held that vessels moving in interstate operations along the inland waters were taxable by the same standards as those which Pullman's Palace Car Co. v. Commonwealth of Pennsylvania, 141 U.S. 18, 11 S.Ct. 876, 35 L.Ed. 613, first applied to railroad cars in interestate commerce. The formula approved was one which fairly apportioned the tax to the commerce carried on within the state. In that way we placed inland water transportation on the same constitutional footing as other interstate enterprises.
4
The Ott case involved a tax by Louisiana on vessels of a foreign corporation operating in Louisiana waters. Louisiana sought to tax only that portion of the value of the vessels represented by the ratio between the total number of miles in Louisiana and the total number of miles in the entire operation. The present case is sought to be distinguished on the ground that Ohio is the domiciliary state and therefore may tax the whole value even though the boats and barges operate outside Ohio. New York Central & H.R.R. Co. v. Miller, 202 U.S. 584, 26 S.Ct. 714, 50 L.Ed. 1155, sustained a tax by the domiciliary state on all the rolling stock of a railroad. But in that case it did not appear that 'any specific cars or any average of cars' was so continuously in another state as to be taxable there. 202 U.S. at page 597, 26 S.Ct. at page 717. Northwest Airlines, Inc. v. State of Minnesota, 322 U.S. 292, 64 S.Ct. 950, 88 L.Ed. 1283, allowed the domiciliary state to tax the entire fleet of airplanes operating interstate; but in that case, as in the Miller case, it was not shown that 'a defined part of the domiciliary corpus' had acquired a taxable situs elsewhere. 322 U.S. at page 295, 64 S.Ct. at page 952, 88 L.Ed. 1283. Those cases, though exceptional on their facts, illustrate the reach of the taxing power of the state of the domicile as contrasted to that of the other states. But they have no application here since most, if not all, of the barges and boats which Ohio has taxed were almost continuously outside Ohio during the taxable year. No one vessel may have been continuously in another state during the taxable year. But we do know that most, if not all, of them were operating in other waters and therefore under Ott v. Mississippi Barge Line Co., supra, could be taxed by the several states on an apportionment basis. The rule which permits taxation by two or more states on an apportionment basis precludes taxation of all of the property by the state of the domicile. See Union Refrigerator Transit Co v. Commonwealth of Kentucky, 199 U.S. 194, 26 S.Ct. 36, 50 L.Ed. 150. Otherwise there would be multiple taxation of interstate operations and the tax would have no relation to the opportunities, benefits, or protection which the taxing state gives those operations.
5
Reversed.
6
Mr. Justice BLACK dissents.
7
Mr. Justice MINTON, dissenting.
8
I assume for the purposes of this dissent that none of the vessels in question were within Ohio during the tax year, and that they were taxed to their full value by Ohio. The record shows that the vessels were all registered in Cincinnati, Ohio, as the home port, and that Ohio is the domicile of the owner. Ohio claims the right to tax these vessels because they have not acquired a tax situs elsewhere than their home port and domicile.
9
Seagoing vessels have always been taxable at the domicile of the owner. Southern Pacific Co. v. Commonwealth of Kentucky, 222 U.S. 63, 32 S.Ct. 13, 56 L.Ed. 96; Morgan v. Parham, 16 Wall. 471, 21 L.Ed. 302; Hays v. Pacific Mail S.S. Co., 17 How, 596, 15 L.Ed. 254. This same rule has been applied to vessels engaged in commerce between the different states. Transportation Co. v. Wheeling, 99 U.S. 273, 25 L.Ed. 412; City of St. Louis v. Wiggins Ferry Co., 11 Wall. 423, 20 L.Ed. 192. The only exception to the rule until today was that where vessels had acquired a situs for taxation in some other state, that other state might tax them. Old Dominion S.S. Co. v. Commonwealth of Virginia, 198 U.S. 299, 25 S.Ct. 686, 49 L.Ed. 1059. In Ayer & Lord Tie Co. v. Commonwealth of Kentucky, 202 U.S. 409, 421, 26 S.Ct. 679, 682, 50 L.Ed. 1082, this Court said:
10
'The general rule has long been settled as to vessels plying between the ports of different states, engaged in the coastwise trade, that the domicil of the owner is the situs of a vessel for the purpose of taxation, wholly irrespective of the place of enrollment, subject, however, to the exception that where a vessel engaged in interstate commerce has acquired an actual situs in a state other than the place of the domicil of the owner, it may there be taxed because within the jurisdiction of the taxing authority.'
11
In the case at hand, the vessels had not acquired a situs for taxation in any other state. They were at large in the Ohio and Mississippi Rivers, touching ports therein from time to time. There was no showing as to how much time any of the vessels spent in any state. Indeed, the time spent in any state by the vessels plying the Mississippi River could not be shown with any accuracy, as the states on each side own to the middle of the stream.1 The navigation channel might be on either side of the center line or right on the center line. Who is to say what state the vessels were in?
12
The doctrine of apportionment applied in Ott v. Mississippi Valley Barge Line Co., 336 U.S. 169, 69 S.Ct. 432, 93 L.Ed. 585, is not in point. In that case the domiciliary state had not sought to tax the vessels. The tax was approved in the Ott case only on the assurance of the Louisiana Attorney General that the taxing statute 'was intended to cover and actually covers here, an average portion of property permanently within the State—and by permanently is meant throughout the taxing year.' Id., 336 U.S. at 175, 69 S.Ct. at page 435. Without such assurance there would have been no basis for applying the apportionment rule. New York Central & H.R.R. Co. v. Miller, 202 U.S. 584, 26 S.Ct. 714, 50 L.Ed. 1155; Pullman's Palace Car Co. v. Commonwealth of Pennsylvania, 141 U.S. 18, 26, 11 S.Ct. 876, 879, 35 L.Ed. 613; Union Refrigerator Transit Co. v. Commonwealth of Kentucky, 199 U.S. 194, 206, 26 S.Ct. 36, 38, 50 L.Ed. 150.
13
The record in this case is silent as to whether any proportion of the vessels were in any one state for the whole of a taxable year. The record does show that no other state collected taxes on the vessels for the years in question or any other year. Until this case, it has not been the law that the state of the owner's domicile is prohibited from taxing under such circumstances.
14
Southern Pacific Co. v. Kentucky, supra, is a case in point. There the owner of the vessels was a Kentucky corporation which operated between various coastal ports. None of the vessels were ever near Kentucky, but Kentucky was allowed to tax them because it was the state of the owner's domicile. The vessels were in and out of other states' ports, just as the instant vessels were in and out of other states' ports; but the mere possibility that some other state might attempt to levy an apportioned tax on the vessels was not permitted to destory Kentucky's power to tax. The crucial fact was that the vessels were not shown to have acquired a tax situs elsewhere.
15
As recently as 1944 this Court would seem to have added vitality to the doctrine which should govern this case. Minnesota had taxed an airline on the full value of its airplanes, including those used in interstate commerce. Mr. Justice Frankfurter, announcing the judgment of the Court upholding the tax, stated: 'The fact that Northwest paid personal property taxes for the year 1939 upon 'some proportion of its full value' of its airplane fleet in some other States does not abridge the power of taxation of Minnesota as the home State of the fleet in the circumstances of the present case. The taxability of any part of this fleet by any other State than Minnesota, in view of the taxability of the entire fleet by that State, is not now before us. It * * * is not shown here that a defined part of the domiciliary corpus has acquired a permanent location, i.e., a taxing situs, elsewhere.' Northwest Airlines v. State of Minnesota, 322 U.S. 292, 295, 64 S.Ct. 950, 952, 88 L.Ed. 1283. The fear of 'double taxation' was much more real in that case than in the instant case; yet the Minnesota tax was sustained because there was no showing that a taxing situs had been acquired elsewhere. The question of what some other state might od is no more before the Court in this case than it was in the Northwest case.
16
The majority today seeks to distinguish the earlier cases by magnifying the relevance of the continuous absence of the vessels from the domiciliary state. But the operative fact of the earlier cases was the absence or presence of another taxing situs. Where no other taxing situs was shown to exist, the state of the domicile was permitted to tax, irrespective of the amount of time the vessels were present in that state. Southern Pacific Co. v. Commonwealth of Kentucky, supra.
17
As it is admittedly not shown on this record that these vessels have acquired a tax situs elsewhere, Ohio should be permitted to tax them as the state of the owner's domicile. I would affirm.
1
Douglas, Boundaries, Areas, Geographic Centers, and Altitudes of the United States and the Several States, 2d Ed. (U.S. Dept. of Interior, Geological Survey Bull. 817).
| 78
|
342 U.S. 359
72 S.Ct. 312
96 L.Ed. 398
DICEv.AKRON, CANTON & YOUNGSTOWN R. CO.
No. 374.
Argued Dec. 3, 4, 1951.
Decided Feb. 4, 1952.
Mr. Rice A. Hershey, Akron, Ohio, for petitioner.
Mr. William A. Kelly, Akron, Ohio, for respondent.
Opinion of the Court by Mr. Justice BLACK, announced by Mr. Justice DOUGLAS.
1
Petitioner, a railroad fireman, was seriously injured when an engine in which he was riding jumped the track. Alleging that his injuries were due to respondent's negligence, he brought this action for damages under the Federal Employers' Liability Act, 35 Stat. 65, 45 U.S.C. § 51 et seq., 45 U.S.C.A. § 51 et seq., in an Ohio court of common pleas. Respondent's defenses were (1) a denial of negligence and (2) a written document signed by petitioner purporting to release respondent in full for $924.63. Petitioner admitted that he had signed several receipts for payments made him in connection with his injuries but denied that he had made a full and complete settlement of all his claims. He alleged that the purported release was void because he had signed it relying on respondent's deliberately false statement that the document was nothing more than a mere receipt for back wages.
2
After both parties had introduced considerable evidence the jury found in favor of petitioner and awarded him a $25,000 verdict. The trial judge later entered judgment notwithstanding the verdict. In doing so he reappraised the evidence as to fraud, found that petitioner had been 'guilty of supine negligence' in failing to read the release, and accordingly held that the facts did not 'sustain either in law or equity the allegations of fraud by clear, unequivocal and convincing evidence.'1 This judgment notwithstanding the verdict was reversed by the Court of Appeals of Summit County, Ohio, on the ground that under federal law, which controlled, the jury's verdict must stand because there was ample evidence to support its finding of fraud. The Ohio Supreme Court, one judge dissenting, reversed the Court of Appeals' judgment and sustained the trial court's action, holding that: (1) Ohio, not federal, law governed; (2) under that law petitioner, a man of ordinary intelligence who could read, was bound by the release even though he had been induced to sign it by the deliberately false statement that it was only a receipt for back wages; and (3) under controlling Ohio law factual issues as to fraud in the execution of this release were properly decided by the judge rather than by the jury. 155 Ohio St. 185, 98 N.E.2d 301. We granted certiorari because the decision of the Supreme Court of Ohio appeared to deviate from previous decisions of this Court that federal law governs cases arising under the Federal Employers' Liability Act. 342 U.S. 811, 72 S.Ct. 59.
3
First. We agree with the Court of Appeals of Summit County, Ohio, and the dissenting judge in the Ohio Supreme Court and hold that validity of releases under the Federal Employers' Liability Act raises a federal question to be determined by federal rather than state law. Congress in § 1 of the Act granted petitioner a right to recover against his employer for damages negligently inflicted. State laws are not controlling in determining what the incidents of this federal right shall be. Chesapeake & Ohio R. Co. v. Kuhn, 284 U.S. 44, 52 S.Ct. 45, 76 L.Ed. 157; Ricketts v. Pennsylvania R. Co., 2 Cir., 153 F.2d 757, 759, 164 A.L.R. 387. Manifestly the federal rights affording relief to injured railroad employees under a federally declared standard could be defeated if states were permitted to have the final say as to what defenses could and could not be properly interposed to suits under the Act. Moreover, only if federal law controls can the federal Act be given that uniform application throughout the country essential to effectuate its purposes. See Garrett v. Moore-McCormack Co., 317 U.S. 239, 244, 63 S.Ct. 246, 250, 87 L.Ed. 239, and cases there cited. Releases and other devices designed to liquidate or defeat injured employees' claims play an important part in the federal Act's administration. Compare Duncan v. Thompson, 315 U.S. 1, 62 S.Ct. 422, 86 L.Ed. 575. Their validity is but one of the many interrelated questions that must constantly be determined in these cases according to a uniform federal law.
4
Second. In effect the Supreme Court of Ohio held that an employee trusts his employer at his peril, and that the negligence of an innocent worker is sufficient to enable his employer to benefit by its deliberate fraud. Application of so harsh a rule to defeat a railroad employee's claim is wholly incongruous with the general policy of the Act to give railroad employees a right to recover just compensation for injuries negligently inflicted by their employers. And this Ohio rule is out of harmony with modern judicial and legislative practice to relieve injured persons from the effect of releases fraudulently obtained. See cases collected in note, 164 A.L.R. 402—415. See also Union Pacific R. Co. v. Harris, 158 U.S. 326, 15 S.Ct. 843, 39 L.Ed. 1003; Callen v. Pennsylvania R. Co., 332 U.S. 625, 68 S.Ct. 296, 92 L.Ed. 242; Chesapeake & O.R. Co. v. Howard, 14 App.D.C. 262, affirmed 178 U.S. 153, 20 S.Ct. 880, 44 L.Ed. 1015; Graham v. Atchison, T. & S.F.R. Co., 9 Cir., 176 F.2d 819. We hold that the correct federal rule is that announced by the Court of Appeals of Summit County, Ohio, and the dissenting judge in the Ohio Supreme Court—a release of rights under the Act is void when the employee is induced to sign it by the deliberately false and material statements of the railroad's authorized representatives made to deceive the employee as to the contents of the release. The trial court's charge to the jury correctly stated this rule of law.
5
Third. Ohio provides and has here accorded petitioner the usual jury trial of factual issues relating to negligence. But Ohio treats factual questions of fraudulent releases differently. It permits the judge trying a negligence case to resolve all factual questions of fraud 'other than fraud in the factum.' The factual issue of fraud is thus split into fragments, some to be determined by the judge, others by the jury.
6
It is contended that since a state may consistently with the Federal Constitutional provide for trial of cases under the Act by a nonunanimous verdict, Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211, 36 S.Ct. 595, 60 L.Ed. 961, Ohio may lawfully eliminate trial by jury as to one phase of fraud while allowing jury trial as to all other issues raised. The Bombolis case might be more in point had Ohio abolished trial by jury in all negligence cases including those arising under the federal Act. But Ohio has not done this. It has provided jury trials for cases arising under the federal Act but seeks to single out one phase of the question of fraudulent releases for determination by a judge rather than by a jury. Compare Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967.
7
We have previously held that 'The right to trial by jury is 'a basic and fundamental feature of our system of federal jurisprudence" and that it is 'part and parcel of the remedy afforded railroad workers under the Employers' Liability Act.' Bailey v. Central Vermont R. Co., 319 U.S. 350, 354, 63 S.Ct. 1062, 1064, 87 L.Ed. 1444. We also recognized in that case that to deprive railroad workers of the benefit of a jury trial where there is evidence to support negligence 'is to take away a goodly portion of the relief which Congress has afforded them.' It follows that the right to trial by jury is too substantial a part of the rights accorded by the Act to permit it to be classified as a mere 'local rule of procedure' for denial in the manner that Ohio has here used. Brown v. Western R. Co., 338 U.S. 294, 70 S.Ct. 105, 94 L.Ed. 100.
8
The trial judge and the Ohio Supreme Court erred in holding that petitioner's rights were to be determined by Ohio law and in taking away petitioner's verdict when the issues of fraud had been submitted to the jury on conflicting evidence and determined in petitioner's favor. The judgment of the Court of Appeals of Summit County, Ohio, was correct and should not have been reversed by the Supreme Court of Ohio. The cause is reversed and remanded to the Supreme Court of Ohio for further action not inconsistent with this opinion.
9
It is so ordered.
10
Reversed and remanded with directions.
11
Mr. Justice FRANKFURTER, whom Mr. Justice REED, Mr. Justice JACKSON and Mr. Justice BURTON join, concurring for reversal but dissenting from the Court's opinion.
12
Ohio, as do many other States,1 maintains the old division between law and equity as to the mode of trying issues, even though the same judge administers both. The Ohio Supreme Court has told us what, on one issue, is the division of functions in all negligence actions brought in the Ohio courts: 'Where it is claimed that a release was induced by fraud (other than fraud in the factum) or by mistake, it is * * * necessary, before seeking to enforce a cause of action which such release purports to bar, that equitable relief from the release be secured.' 155 Ohio St. 185, 186, 98 N.E.2d 301, 304. Thus, in all cases in Ohio, the judge is the trier of fact on this issue of fraud, rather than the jury. It is contended that the Federal Employers' Liability Act requires that Ohio courts send the fraud issue to a jury in the cases founded on that Act. To require Ohio to try a particular issue before a different fact-finder in negligence actions brought under the Employers' Liability Act from the fact-finder on the identical issue in every other negligence case disregards the settled distribution of judicial power between Federal and State courts where Congress authorizes concurrent enforcement of federally-created rights.
13
It has been settled ever since the Second Employers' Liability Cases (Mondou v. New York, N.H. & H.R. Co.) 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327, that no State which gives its courts jurisdiction over common law actions for negligence may deny access to its courts for a negligence action founded on the Federal Employers' Liability Act. Nor may a State discriminate disadvantageously against actions for negligence under the Federal Act as compared with local causes of action in negligence. McKnett v. St. Louis & S.F.R. Co., 292 U.S. 230, 234, 54 S.Ct. 690, 692, 78 L.Ed. 1227; Missouri ex rel. Southern R. Co. v. Mayfield, 340 U.S. 1, 4, 71 S.Ct. 1, 3, 95 L.Ed. 3. Conversely, however, simply because there is concurrent jurisdiction in Federal and State courts over actions under the Employers' Liability Act, a State is under no duty to treat actions arising under that Act differently from the way it adjudicates local actions for negligence, so far as the mechanics of litigation, the forms in which law is administered, are concerned. This surely covers the distribution of functions as between judge and jury in the determination of the issues in a negligence case.
14
In 1916 the Court decided without dissent that States in entertaining actions under the Federal Employers' Liability Act need not provide a jury system other than that established for local negligence actions. States are not compelled to provide the jury required of Federal courts by the Seventh Amendment. Minneapolis & St. L.R. Co. v. Bombolis, 241 U.S. 211, 36 S.Ct. 595, 60 L.Ed. 961. In the thirty-six years since this early decision after the enactment of the Federal Employers' Liability Act, 35 Stat. 65 (1908), the Bombolis case has often been cited by this Court but never questioned. Until today its significance has been to leave to States the choice of the fact-finding tribunal in all negligence actions, including those arising under the Federal Act. Mr. Chief Justice White's opinion cannot bear any other meaning:
15
'Two propositions as to the operation and effect of the 7th Amendment are as conclusively determined as is that concerning the nature and character of the jury required by that Amendment where applicable. (a) That the first ten Amendments, including of course, the 7th, are not concerned with state action, and deal only with Federal action. We select from a multitude of cases those which we deem to be leading: Barron v. Baltimore, 7 Pet. 243, 8 L.Ed. 672; Fox v. Ohio, 5 How. 410, 434, 12 L.Ed. 213, 223; Twitchell v. Commonwealth, 7 Wall. 321, 19 L.Ed. 223; Brown v. New Jersey, 175 U.S. 172, 174, 20 S.Ct. 77 (78), 44 L.Ed. 119, 120; Twining v. New Jersey, 211 U.S. 78, 93 (29 S.Ct. 14, 17), 53 L.Ed. 97, 103. And, as a necessary corollary, (b) that the 7th Amendment applies only to proceedings in courts of the United States, and does not in any manner whatever govern or regulate trials by jury in state courts, or the standards which must be applied concerning the same. Livingston v. Moore, 7 Pet. 469, 552, 8 L.Ed. 751, 781; The Justices v. Murray, 9 Wall, 274, 19 L.Ed. 658; Edwards v. Elliott, 21 Wall. 532, 22 L.Ed. 487; Walker v. Sauvinet, 92 U.S. 90, 23 L.Ed. 678; Pearson v. Yewdall, 95 U.S. 294, 24 L.Ed. 436.' 241 U.S. at page 217, 36 S.Ct. at page 596.
16
'And it was, of course, presumably an appreciation of the principles so thoroughly settled which caused Congress, in the enactment of the employers' liability act, to clearly contemplate the existence of a concurrent power and duty of both Federal and state courts to administer the rights conferred by the statute in accordance with the modes of procedure prevailing in such courts.' 241 U.S. at page 218, 36 S.Ct. at page 597.
17
'The proposition that, as the 7th Amendment is controlling upon Congress, its provisions must therefore be applicable to every right of a Federal character created by Congress, and regulate the enforcement of such right, but in substance creates a confusion by which the true significance of the Amendment is obscured. That is, it shuts out of view the fact that the limitations of the Amendment are appliable only to the mode in which power or jurisdiction shall be exercised in tribunals of the United States, and therefore that its terms have no relation whatever to the enforcement of rights in other forums merely because the right enforced is one conferred by the law of the United States.' 241 U.S. at pages 219—220, 36 S.Ct. at page 597.
18
Although a State must entertain negligence suits brought under the Federal Employers' Liability Act if it entertains ordinary actions for negligence, it need conduct them only in the way in which it conducts the run of negligence litigation. The Bombolis case directly establishes that the Employers' Liability Act does not impose the jury requirements of the Seventh Amendment on the States pro tanto for Employers' Liability litigation. If its reasoning means anything, the Bombolis decision means that, if a State chooses not to have a jury at all, but to leave questions of fact in all negligence actions to a court, certainly the Employers' Liability Act does not require a State to have juries for negligence actions brought under the Federal Act in its courts. Or, if a State chooses to retain the old double system of courts, common law and equity—as did a good many States until the other day, and as four States still do2—surely there is nothing in the Employers' Liability Act that requires traditional distribution of authority for disposing of legal issues as between common law and chancery courts to go by the board. And, if States are free to make a distribution of functions between equity and common law courts, it surely makes no rational difference whether a State chooses to provide that the same judge preside on both the common law and the chancery sides in a single litigation, instead of in separate rooms in the same building. So long as all negligence suits in a State are treated in the same way, by the same mode of disposing equitable, non-jury, and common law, jury issues, the State does not discriminate against Employers' Liability suits nor does it make any inroad upon substance.
19
Ohio and her sister States with a similar division of functions between law and equity are not trying to evade their duty under the Federal Employers' Liability Act; nor are they trying to make it more difficult for railroad workers to recover, than for those suing under local law. The States merely exercise a preference in adhering to historic ways of dealing with a claim of fraud; they prefer the traditional way of making unavailable through equity an otherwise valid defense. The State judges and local lawyers who must administer the Federal Employers' Liability Act in State courts are trained in the ways of local practice; it multiplies the difficulties anc confuses the administration of justice to require, on purely theoretical grounds, a hybrid of State and Federal practice in the State courts as to a single class of cases. Nothing in the Employers' Liability Act or in the judicial enforcement of the Act for over forty years forces such judicial hybridization upon the States. The fact that Congress authorized actions under the Federal Employers' Liability Act to be brought in State as well as in Federal courts seems a strange basis for the inference that Congress overrode State procedural arrangements controlling all other negligence suits in a State, by imposing upon State courts to which plaintiffs choose to go the rules prevailing in the Federal courts regarding juries. Such an inference is admissible, so it seems to me, only on the theory that Congress included as part of the right created by the Employers' Liability Act an assumed likelihood that trying all issues to juries is more favorable to plaintiffs. At least, if a plaintiff's right to have all issues decided by a jury rather than the court is 'part and parcel of the remedy afforded railroad workers under the Employers Liability Act,' the Bombolis case should be overruled explicitly instead of left as a derelict bound to occasion collisions on the waters of the law. We have put the questions squarely because they seem to be precisely what will be roused in the minds of lawyers properly pressing their clients' interests and in the minds of trial and appellate judges called upon to apply this Court's opinion. It is one thing not to borrow trouble from the morrow. It is another thing to create trouble for the morrow.
20
Even though the method of trying the equitable issue of fraud which the State applies in all other negligence cases governs Employers' Liability cases, two questions remain for decision: Should the validity of the release be tested by a Federal or a State standard? And if by a Federal one, did the Ohio courts in the present case correctly administer the standard? If the States afford courts for enforcing the Federal Act, they must enforce the substance of the right given by Congress. They cannot depreciate the legislative currency issued by Congress—either expressly or by local methods of enforcement that accomplish the same result. Davis v. Wechsler, 263 U.S. 22, 24, 44 S.Ct. 13, 14, 68 L.Ed. 143. In order to prevent diminution of railroad workers' nationally-uniform right to recover, the standard for the validity of a release of contested liability must be Federal. We have recently said: 'One who attacks a settlement must bear the burden of showing that the contract he has made is tainted with invalidity, either by fraud practiced upon him or by a mutual mistake under with both parties acted.' Callen v. Pennsylvania R. Co., 332 U.S. 625, 630, 68 S.Ct. 296, 298, 92 L.Ed. 242. Such proof of fraud need be only by a preponderance of relevant evidence. See Union Pacific R. Co. v. Harris, 158 U.S. 326, 15 S.Ct. 843, 39 L.Ed. 1003. The admitted fact that the injured worker signed the release is material in tending to show the release to be valid, but presumptions must not be drawn from that fact so as to hobble the plaintiff's showing that it would be unjust to allow a formally good defense to prevail. See § 5, Federal Employers' Liability Act, 35 Stat. 65, 66, 45 U.S.C. § 55, 45 U.S.C.A. § 55.
21
The judgment of the Ohio Supreme Court must be reversed for it applied the State rule as to validity of releases, 155 Ohio St. 185, 98 N.E.2d 301, and it is not for us to interpret Ohio decisions in order to be assured that on a matter of substance the State and Federal criteria coincide. Moreover, we cannot say with confidence that the Ohio trial judge applied the Federal standard correctly. He duly recognized that 'the Federal law controls as to the validity of a release pleaded and proved in bar of the action, and the burden of showing that the alleged fraud vitiates the contract or compromise or release rests upon the party attacking the release.' And he made an extended analysis of the relevant circumstances of the release, concluding, however, that there was no 'clear, unequivocal and convicing evidence' of fraud. Since these elusive words fail to assure us that the trial judge followed the Federal test and did not require some larger quantum of proof, we would return the case for further proceedings on the sole question of fraud in the release.
1
The trial judge had charged the jury that petitioner's claim of fraud must be sustained 'by clear and convincing evidence,' but since the verdict was for petitioner, he does not here challenge this charge as imposing too heavy a burden under controlling federal law.
1
Chafee, Simpson, and Maloney, Cases on Equity (1951 ed.) 12.
2
Ibid.
| 78
|
342 U.S. 371
72 S.Ct. 350
96 L.Ed. 417
UNITED STATESv.NEW WRINKLE, Inc., et al.
No. 250.
Decided Feb. 4, 1952.
Argued Jan. 10, 11, 1952.
Mr. Charles H. Weston, Washington, D.C., for appellant.
Mr. H. A. Toulmin, Jr., Dayton, Ohio, for appellee, New Wrinkle, Inc.
Mr. Justice REED delivered the opinion of the Court.
1
This suit against New Wrinkle, Inc., and The Kay & Ess Co. was instituted in the United States District Court for the Southern District of Ohio by the United States as a civil proceeding under § 4 of the Sherman Act.1 Defendants are charged with having violated § 1 of that law2 by conspiring to fix uniform minimum prices and to eliminate competition throughout substantially all of the wrinkle finish industry3 of the United States by means of patent license agreements. Motions to dismiss the suit were filed by defendants. The defendant Kay & Ess urged that the complaint failed to state a cause of action. Defendant New Wrinkle pressed a sole contention: that it was not then and never had been engaged in interstate commerce and could, therefore, not be guilty of violating the Sherman Act.
2
The District Court, without opinion, thereafter entered separate judgments as to each defendant dismissing the complaint and reciting in each judgment that the motion to dismiss was 'well taken.' A petition for appeal was filed and allowed, and on October 8, 1951, probable jurisdiction was noted on direct appeal pursuant to a jurisdiction conferred on this Court by § 2 of the Expediting Act of February 11, 1903. 15 U.S.C. § 29, 15 U.S.C.A. § 29.
I.
3
In granting the motions of defendants, the District Court, of course, treated the allegations of the complaint as true. In substance the complaint charges that prior to and during 1937, defendant Kay & Ess was engaged in litigation with a named coconspirator, the Chadeloid Chemical Co., in regard to certain patents covering manufacture of wrinkle finish enamels, varnishes and paints. Each company claimed it controlled the basic patents on wrinkle finish, contending that the patents of the other were subservient to its own. Negotiations throughout 1937 resulted in a contract entered into by Kay & Ess and Chadeloid on November 2, 1937. This contract made provision for the organization of a new corporation, the defendant New Wrinkle. Both Kay & Ess and Chadeloid agreed to accept stock in the new company in exchange for assignments of their wrinkle finish patents. New Wrinkel was to grant patent licenses, incorporating agreements which fixed the minimum prices at which all licensed manufacturers might sell, to the manufacturers in the wrinkle finish industry, including Kay & Ess and Chadeloid. The price-fixing schedules were not to become operative until twelve of the principal producers of wrinkle finishes had subscribed to the minimum prices prescribed in the license agreements.
4
Pursuant to this arrangement, the complaint charges New Wrinkle was incorporated, and the patent rights of Kay & Ess and Chadeloid were transferred to it. In conjunction with other named companies and persons, the defendants and Chadeloid thereafter worked together to induce makers of wrinkle finishes to accept the price-fixing patent licenses which New Wrinkle had to offer. These prospective licensees were advised of the agreed-upon prices, terms and conditions of sale in the New Wrinkle licenses, and they were assured that like advice was being given to other manufacturers 'in order to establish minimum prices throughout the industry.' After May 7, 1938, when the requisite twelve leading manufacturing companies had accepted New Wrinkle licenses, the price schedules became operative. By September 1948, when the complaint was filed in this action, more than two hundred, or substantially all, manufacturers of wrinkle finishes in the United States held nearly identical ten-year extendable license agreements from New Wrinkle. These agreements required, among other things, that a licensee observe in all sales of products covered by the licensed patents a schedule of minimum prices, discounts and selling terms established by the licensor New Wrinkle. Upon thirty days' notice in writing, New Wrinkle might alter any or all of the terms of the price schedule, but such prices, terms and discounts as New Wrinkle might establish were to bind the licensee only if imposed at the same time and in the same terms upon the licensor and all other licensees.4 Termination provisions in the agreements required a licensee to give three months' written notice and allowed the licensor to terminate the license if a licensee failed to remedy a violation of the agreement within thirty days after written notice thereof by the licensor. A 5-cent per gallon royalty was made payable on all wrinkle finish sold or used by a licensee, said royalty to be reduced to the same figure as that contained in any subsequent license granted at a lower royalty charge.
5
New Wrinkle, acting with the consent of its licensees, issued at intervals 'License Rulings' giving minimum prices, detailed terms and conditions such as allowable discounts and permissible practices. The requirements of these 'Rulings' were adhered to by the licensees. Since an entire copy of 'License Rulings,' as filed with the complaint as an exhibit, is too bulky for reprinting, the schedule of prices operative at the time of the filing of the complaint in this action, as illustrative, is set out in an Appendix to this opinion. 342 U.S. 381, 72 S.Ct. 355. It precisely details and makes rigid the selling procedure for a variety of minutely prescribed products deemed to be covered by the patents and the license agreements.
II.
6
Since the motions to dismiss must be deemed to admit all of the above as true, we need only consider whether or not these facts would establish a violation of § 1 of the Sherman Act by appellees, New Wrinkle and Kay & Ess.
7
Appellee, New Wrinkle, differs from Kay & Ess. New Wrinkle is not a manufacturer of the commodities covered by its patents. It is solely a holder or owner of the patents, granting the right of making and vending to others. Kay & Ess does manufacture under the New Wrinkle license. New Wrinkle urges that its abstention from manufacturing activities and concentration on patent licensing insulates its activity from the prohibitions of § 1 of the Sherman Act. Persons engaged exclusively in licensing patents are said by appellee to be exempt from the Sherman Act because such contracts are not commerce and are functions solely controlled by the patent laws. For the contention that its licensing is not commerce, reliance is placed on New York Life Ins. Co. v. Deer Lodge County, 231 U.S. 495, 34 S.Ct. 167, 58 L.Ed. 332, and cases involving such local incidents of interstate commerce as were treated in United Shoe Machinery Corp. v. United States.5 For the latter contention, if we understand the argument correctly, New Wrinkle asserts that since patents give their owners a right to sell, they may do so on such terms as they please because they are merely selling personal services, and such services are not commerce, citing Apex Hosiery Co. v. Leader, 310 U.S. 469, 502, 60 S.Ct. 982, 997, 84 L.Ed. 1311, a case holding that a strike to unionize a factory did not violate the Sherman Act.
8
These contentions leave out of consideration the allegations of the complaint concerning the alleged combination in restraint of trade. The United States charges the use of patent licenses as an essential part of the plan to restrain trade, a trade in enamels, varnishes and paints that is alleged to be and obviously is interstate in character. It charges that the price control is an essential part of that restraint.
9
We think it beyond question that this making of license contracts for the purpose of regulating distribution and fixing prices of commodities in interstate commerce is subject to the Sherman Act, even though the isolated act of contracting for the licenses is wholly within a single state. Certainly since United States v. Treton Potteries Co., 1927, 273 U.S. 392, 397, 47 S.Ct. 377, 379, 71 L.Ed. 700, price fixing in commerce, reasonable or unreasonable, has been considered a per se violation of the Sherman Act.6 Likewise it is clear that, although the execution of a contract of insurance may not be interstate commerce,
10
'If contracts of insurance are in fact made the instruments of restraint in the marketing of goods and services in or affecting interstate commerce, they are not beyond the reach of the Sherman Act more than contracts for the sale of commodities,—contracts which, not in themselves interstate commerce, may nevertheless by used as the means of its restraint.'7
11
And so it is with patent license contracts which are a part of a plan to restrain commerce. Patents give no protection from the prohibitions of the Sherman Act to such activities, when the licenses are used, as here, in the scheme to restrain. The allegations of the complaint cover such a situation and New Wrinkle and its manufacturing licensee, Kay & Ess, are alike covered by the prohibitions of § 1.
III.
12
Appellees argue further, however, that the principles of United States v. General Electric Co., 272 U.S. 476, 47 S.Ct. 192, 71 L.Ed. 362, and E. Bement & Sons v. National Harrow Co., 186 U.S. 70, 22 S.Ct. 747, 46 L.Ed. 1058, control here. Since we examined these principles in detail as recently as 1948, we draw upon that discussion for our conclusions here.8 The Bement and General Electric cases allowed a patentee to license a competitor in commerce to make and vend with a price limitation controlled by the patentee. When we examined the rule in 1948, the holding of the General Electric case was left as stated above. 333 U.S. at page 310, 68 S.Ct. at page 562, 92 L.Ed. 701. But it was pointed out that 'the possession of a valid patent or patents does not give the patentee any exemption from the provisions of the Sherman Act beyond the limits of the patent monopoly.' 333 U.S. at page 308, 68 S.Ct. at page 561. We said that 'two or more patentees in the same patent field may (not) legally combine their valid patent monopolies to secure mutual benefits for themselves through contractual agreements between themselves and other licensees, for control of the sale price of the patented devices.' 333 U.S. at page 305, 68 S.Ct. at page 559. Price control through cross-licensing was barred as beyond the patent monopoly.
13
On the day of the Line Material decision, this Court handed down United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746. The Gypsum case was based on facts similar to those here alleged except that the patent owner was also a manufacturer. We have pointed out above in section II of this opinion that we consider the fact that New Wrinkle is exclusively a patent-holding company of no significance as a defense to the alleged violation of the Sherman Act. We said in Gypsum that 'industry-wide license agreements, entered into with knowledge on the part of licensor and licensees of the adherence of others, with the control over prices and methods of distribution through the agreements and the bulletins, were sufficient to establish a prima facie case of conspiracy.' 333 U.S. at page 389, 68 S.Ct. at page 539. On remand, the prima facie case resulted in a final judgment, affirmed by this Court.9 In discussing the General Electric case, the Court was unanimous in saying that it 'gives no support for a patentee, acting in concert with all members of an industry, to issue substantially identical licenses to all members of the industry under the terms of which the industry is completely regimented, the production of competitive unpatented products suppressed, a class of distributors squeezed out, and prices on unpatented products stabilized. * * * it would be sufficient to show that the defendants, constituting all former competitors in an entire industry, had acted in concert to restrain commerce in an entire industry under patent licenses in order to organize the industry and stabilize prices.' 33 U.S. at pages 400—401, 68 S.Ct. at page 544, 92 L.Ed. 746.
14
We see no material difference between the situation in Line Material and Gypsum and the case presented by the allegations of this complaint. An arrangement was made between patent holders to pool their patents and fix prices on the products for themselves and their licensees. The purpose and result plainly violate the Sherman Act. The judgment below must be reversed.
15
Reversed.
16
Mr. Justice CLARK took no part in the consideration or decision of this case.
APPENDIX.
17
NEW WRINKLE, INC.
Licensors of Processes and Finishes
MINIMUM PRICE SCHEDULE NO. 5
18
(Announced June 1, 1947)
EFFECTIVE JULY 1, 1947
19
(Superseding Minimum Price Schedule No. 4 as revised December 12, 1946)
20
Part of New Wrinkle, Inc., License Agreement
Dated April 1, 1938
21
The following are the minimum prices at which patented Wrinkle Finish may be sold under License Agreement, to take effect on July 1, 1947 and to remain in force until further notice.
WRINKLE FINISH CLEAR
1 Gal. 5 Gal. 1/2 Drum Drum
22
-100 $2.85 $2.70 $2.65 $2.60
23
+100 2.70 2.55 2.50 2.45
WRINKLE FINISH BLACK
24
-100 3.40 3.25 3.20 3.10
25
+100 3.25 3.10 3.05 2.95
WRINKLE FINISH ORDINARY COLORS
26
-100 3.65 3.50 3.40 3.35
27
+100 3.50 3.35 3.25 3.20
WRINKLE FINISH ORGANICS (see page 3)
28
-100 4.00 3.85 3.75 3.70
29
+100 3.85 3.70 3.60 3.55
WRINKLE FINISH METALLICS (see page 3)
30
(Addition of metallic to clear Wrinkle)
31
-100 3.50 3.35 3.25 3.20
32
+100 3.35 3.20 3.10 3.05
33
In the event that a metallic is added to a pigmented Wrinkle Finish, the established minimum for that pigmented finish, plus $.25, will be the minimum price.
34
Reductions in price for quantity as shown on above schedule are permissible on and shall apply only to quantities of wrinkle finish contained in a single shipment.
35
Wrinkle Finish in concentrated form or ingredients from which customer may produce wrinkle finish may be sold by Licensee only at minimum price per gallon on the number of gallons of the kind or color of wrinkle finish for final use by the customer than can normally be produced by adding to such concentrate or ingredients supplied by Licensee.
36
Clear Wrinkle Finish sold by Licensee under circumstances charging seller with knowledge that customer intends converting same into colored wrinkle finish may be sold only in accordance with the minimum price per gallon hereby established for wrinkle finish of the color and quantity in question.
37
Prices are f.o.b. destination or freight allowed.
38
In the event of cancellation of orders or return of goods prices shall be readjusted and settlement made according to the actual quantities purchased and retained.
39
Terms: 30 days net, 1% for cash within ten days after shipment.
40
In making bids, it is not permissible to deduct the cash discount. The cash discount of 1% can only be given or allowed if the "Wrinkle Finish" is actually paid for within ten days after shipment.
41
See minimum Price Schedule (No. 2-A) on Page 7 for Canadian Prices.
1
15 U.S.C. § 4, 15 U.S.C.A. § 4: 'The several district courts of the United States are invested with jurisdiction to prevent and restrain violations of sections 1—7 of this title; and it shall be the duty of the several district attorneys of the United States, in their respective districts, under the direction of the Attorney General, to institute proceedings in equity to prevent and restrain such violations. Such proceedings may be by way of petition setting forth the case and praying that such violation shall be enjoined or otherwise prohibited. When the parties complained of shall have been duly notified of such petition the court shall proceed, as soon as may be, to the hearing and determination of the case; and pending such petition and before final decree, the court may at any time make such temporary restraining order or prohibition as shall be deemed just in the premises.'
2
Id., § 1: 'Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal: * * *.'
3
'8. 'Wrinkle' finishes, also known as 'Crinkle,' 'Shrivel,' 'Sag,' 'Morocco,' and by other designations, are defined as enamels, varnishes and paints which have been compounded from such materials and by such methods as to produce when applied and dried, a hard wrinkled surface on metal or other material.
'9. Wrinkle finishes are widely used as coverings for the surfaces of typewriters, cash registers, motors, adding machines, and many other articles of manufacture. They have the following advantages over smooth finishes such as ordinary enamels and varnishes:
'a. One coat of wrinkle finish is sufficient for many purposes for which two or more coats of smooth finish would be required;
'b. Surfaces to which wrinkle finishes are to be applied need not be prepared as carefully as those which are to receive smooth finishes, since the wrinkle finishes cover small imperfections; and
'c. The original appearance of wrinkle-finished articles can be maintained with less cleaning and polishing than that of smooth-finished articles.'
4
A copy of the license was filed with the complaint. An important section, § 7, reads, so far as material in this proceeding, as follows: '7. The Licensor hereby reserves and shall have the right at any time to establish a Schedule of Minimum Prices, Discounts, and Selling Terms only in accordance with which Licensee, Licensor, and all other Licensees shall thereafter sell or otherwise dispose of products covered by patents included herein, and thereafter to modify, amend and suspend any such Schedule and/or establish a New Schedule. * * * The Licensor announces as a matter of policy that it will fix said price based upon the cost of raw materials and labor as reported by the United States Department of Commerce and the United States Department of Labor, plus the royalty charged hereunder, it being the intent and purpose of the Licensor to open to the entire trade the use of these patents so licensed at the lowest price consistent with a reasonable profit to the manufacturer, Licensee, the trade, and to this Licensor. No Schedule of Minimum Prices, Discounts and Selling Terms nor any modification or amendment or suspension thereof shall be binding upon Licensee unless at the same time and in the same terms imposed upon Licensor and all other Licensees.'
5
258 U.S. 451, 465, 42 S.Ct. 363, 368, 66 L.Ed. 708. There it is said: 'It is true that the mere making of the lease of the machines is not of itself interstate commerce.'
6
United States v. Line Material Co., 333 U.S. 287, 307, 68 S.Ct. 550, 560, 92 L.Ed. 701.
7
United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533, dissent 570, see majority 546, 64 S.Ct. 1162, dissent 1182, 1183, 1169, 88 L.Ed. 1440. And see Polish National Alliance v. National Labor Relations Board, 322 U.S. 643, 647, 64 S.Ct. 1196, 88 L.Ed. 1509, and Lorain Journal Co. v. United States, 342 U.S. 143, 149, 72 S.Ct. 181, 184.
8
United States v. Line Material Co., 333 U.S. 287, 68 S.Ct. 550, 92 L.Ed. 701; United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746.
9
United States v. United States Gypsum Co., 340 U.S. 76, 71 S.Ct. 160, 95 L.Ed. 89. Compare as to copyrights United States v. Paramount Pictures, 334 U.S. 131, 143, 68 S.Ct. 915, 922, 92 L.Ed. 1260.
| 78
|
342 U.S. 353
72 S.Ct. 306
96 L.Ed. 394
HUGHESv.UNITED STATES.
No. 86.
Argued Jan. 7, 1952.
Decided Feb. 4, 1952.
Mr. T. A. Slack, Houston, Tex., for appellant.
Mr. Philip Marcus, Washington, D.C., for appellee.
Opinion of the Court by Mr. Justice BLACK, anounced by Mr. Justice DOUGLAS.
1
A three-judge District Court has construed certain provisions of a Sherman Act consent decree as compelling the sale of certain moving picture stocks owned by the appellant Hughes. This case is properly here on appeal from an order entered to compel the sale. 15 U.S.C. (Supp. IV) § 29, 15 U.S.C.A. § 29.
2
These anti-trust proceedings were originally brought by the United States against Radio-Keith-Orpheum Corporation and other moving picture producers, distributors, and exhibitors. From the District Court's judgment in the case both the Government and defendants appealed. We affired in part and reversed in part. United States v. Paramount Pictures, Inc., 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260. We remanded the case to the District Court leaving it free to consider whether it was necessary to require the production and distribution companies to divest themselves of all ownership and interest in the business of exhibiting pictures. Thereafter a consent decree was entered containing detailed provisions for complete divorcement of R.K.O.'s production-distribution assets from its theater assets. To accomplish this, R.K.O. was to form two new holding companies: one, the 'New Picture Company,' was to take over all R.K.O. subsidiaries engaged in production and distribution; the other, the 'New Theater Company,' was to own and control R.K.O. subsidiaries which operated theaters. Upon formation of the new companies, R.K.O. was to be dissolved. Former stockholders were to become the owners of all the capital stock of the two new companies.
3
A factor considered in connection with this divorcement was that Howard R. Hughes, appellant here, owned 24% of the common stock of R.K.O. No other person or corporation owned as much as 1%. He and government representatives agreed on terms to meet this situation. Their agreement was embodied in the consent decree, becoming section V. This section of the decree, set out below,1 is the center of the present controversy. It provides that Hughes may 'either' (A) sell his stock in one or the other of the two newly formed companies, 'or' (B) deposit such stock with a court-designated trustee under a voting trust agreement to remain in force until Hughes shall have sold his stock in one of the companies. Hughes chose not to sell any stock, and he and the United States agreed on a trustee and the terms of a voting trust, which agreement was approved by a court order. Later, by motion the United States sought a court order forcing the trustee to sell Hughes' stock. Without evidence or findings of fact, and over Hughes' protests, the District Court amended its order appointing a trustee by providing that 'if the stock trusteed shall not have been disposed of by Howard R. Hughes by February 20th, 1953, the trustee shall dispose of such stock within two years thereafter.' Appellant Hughes urges that it was error to order his stock sold in so summary a manner.
4
First. The Government argues that section V should be read as compelling Hughes to sell his stock within a reasonable time. We hold that the language of the section imposes no such requirement. A reading of the either/or wording would make most persons believe that Hughes was to have a choice of two different alternatives. Hughes would have no choice if the first 'alternative' was to sell the stock and the second 'alternative' was also to sell the stock. Moreover, section V provided that, if Hughes did not sell his stock but chose to place it in a voting trust, this trust should remain in force 'until Howard R. Hughes shall have sold' his stock. This would ordinarily mean that Hughes, not the Court, could decide whether his stock should be sold. Nor can a different inference be drawn from the language authorizing the court to provide the trust's general 'terms or conditions, including compensation to the trustee.' This language cannot support an inference that the court was empowered to deprive Hughes of either of his expressly granted alternatives.
5
Arguing on a broader front than the mere language of section V, the Government urges: that section V must be interpreted so as to achieve the purposes of the entire R.K.O. consent decree; that the basic purpose of that decree was divorcement of production-distribution companies from theater exhibition companies; and that Hughes cannot consistently with this purpose be left with a 24% interest in both types of companies. It may be true as the Government now contends that Hughes' large block of ownership in both types of companies endangers the independence of each. Evidence might show that a sale by Hughes is indispensable if competition is to be preserved. However, in section V the parties and the District Court provided their own detailed plan to neutralize the evils from such ownership. Whatever justification there may be now or hereafter for new terms that require a sale of Hughes' stock, we think there is no fair support for reading that requirement into the language of section V. The District Court's order cannot be supported by reliance on such an interpretation. Consequently the court's command to sell the stock effected a substantial modification of the original decree.
6
Second. The Government finds support for the substantial change in the decree by reference to (1) provisions in the decree reserving jurisdiction to amend, and (2) the inherent equity powers of the court. We entertain no doubt concerning the District Court's power to require sale of Hughes' stock after a proper hearing. When this case was formerly here on other phases, 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260, we had occasion to point out the District Court's power to require some companies to divest themselves of ownership of other companies where necessary to preserve competition and to prevent monopoly. The guiding principles there set out would also justify compulsory divestment of stocks by an individual. But there has been no adequate hearing of this issue as to Hughes. Neither when the present order was considered nor when the original decree was entered were any findings of fact made to support an order of compulsory sale of Hughes' stock. As previously pointed out the consent of Hughes did not include consent to make him sell. At every stage Hughes objected to the order forcing sale of his stock without a hearing that included evidence and a judicial determination based on it.
7
In these circumstances we hold that it was error to enter an order forcing Hughes to sell his stock.
8
Reversed.
9
Mr. Justice JACKSON and Mr. Justice CLARK took no part in the consideration or decision of this case.
1
'V. Howard R. Hughes represents that he now owns approximately 24 percent of the common stock of Radio-Keith-Orpheum Corporation. Within a period of one year from the date hereof, Howard R. Hughes shall either:
'A. Dispose of his holdings of the stock of (1) the New Picture Company, or (2) the New Theater Company, as he may elect, to a purchaser or purchasers who is or are not a defendant herein or owned or controlled by or affiliated with a defendant in this cause; or
'B. Deposit with a trustee designated by the court all of his shares of the New Picture Company or the New Theater Company, as he may elect, under a voting trust agreement whereby the trustee shall possess and be entitled to exercise all the voting rights of such shares, including the right to execute proxies and consents with respect thereto. Such voting trust agreement shall thereafter remain in force until Howard R. Hughes shall have sold his holdings of stock of the New Picture Company or the New Theater Company to a purchaser or purchasers who is or are not a defendant herein or owned or controlled by or affiliated with a defendant herein, and upon such sale and transfer such voting trust agreement shall automatically terminate. Such trust shall be upon such other terms or conditions, including compensation to the trustee, as shall be prescribed by the Court. During the period of such voting trust, Howard R. Hughes shall be entitled to receive all dividends and other distributions made on account of the trusteed shares, and proceeds from the sale thereof.
'For the purpose of evidencing his consent to be bound by the terms of section V of this decree, Howard R. Hughes individually has consented to its entry and it shall be binding upon his agents and employees.'
| 78
|
342 U.S. 389
72 S.Ct. 424
96 L.Ed. 436
MEMPHIS STEAM LAUNDRY CLEANER, Inc.,v.STONE, Chairman, State Tax Commission of Mississippi.
No. 253.
Argued and Submitted Dec. 3, 1951.
Decided March 3, 1952.
Mr. C. E. Clifton, Memphis, Tenn., for appellant.
Mr. J. H. Sumrall, Jackson, Miss., for appellee.
Mr. Chief Justice VINSON delivered the opinion of the Court.
1
The question before us is whether a Mississippi tax laid upon the privilege of soliciting business for a laundry not licensed in that State infringes the Commerce Clause.1
2
Appellant operates a laundry and cleaning establishment in Memphis, Tennessee. In serving the area surrounding Memphis, appellant sends ten of its trucks into eight Mississippi counties where its drivers pick up, deliver and collect for laundry and cleaning and seek to acquire new customers. Appellee, who is Chairman of the State Tax Commission of the State of Mississippi, Demanded that appellant pay $500 under the following provisions of the Mississippi 'state-wide privilege tax law of 1944';2
3
'Sec. 3. Every person desiring to engage in any business, or exercise any privilege hereafter specified shall first, before commencing same, apply for, pay for, and procure from the state tax commissioner or commissioner of insurance, a privilege license authorizing him to engage in the business or exercise the privilege specified therein, and the amount of tax shown in the following sections is hereby imposed for the privilege of engaging or continuing in the business set out therein.'
4
'Sec. 45. Upon each person doing business as a transient vendor, or dealter, as defined in this section, and upon which a privilege tax is not specifically imposed by another section of this act, a tax for each county according to the following schedules:
5
'(t) Upon each person soliciting business for a laundry not licensed in this state as such, in each county .......... $50.00 '(y) Provided however, that where any person subject to the payment of the tax imposed in this section, makes use of more than one vehicle in carrying on such business, the tax herein imposed shall be paid on each vehicle used in carrying on such business.'
6
After paying the $500 tax as demanded to prevent arrest of its drivers and seizure of its ten trucks, appellant sued for refund in a state court, claiming that the Mississippi tax act was not applicable to its operations and that, if so applied, the tax would violate the Commerce Clause. Judgment was entered for appellant in the trial court but the Mississippi Supreme Court reversed, holding that appellant's drivers were 'transient vendors or dealers' within the meaning of the statute and that application of the tax to appellant did not conflict with the Commerce Clause.3 The case is here on appeal. 28 U.S.C. (Supp. IV) § 1257(2), 28 U.S.C.A. § 1257(2).
7
In passing upon the validity of a state tax challenged under the Commerce Clause, we first look to the 'operating incidence' of the tax.4 The Mississippi Act requires a 'privilege license' and imposes a 'privilege tax' upon appellant's employees 'soliciting business.' The Mississippi Supreme Court described the tax as follows: '* * * The tax involved here is not a tax on interstate commerce, but a tax on a person soliciting business for a laundry not licensed in this state, a local activity which applies to residents and non-residents alike.'5
8
The State may determine for itself the operating incidence of its tax. But it is for this Court to determine whether the tax, as construed by the highest court of the State, is or is not 'a tax on interstate commerce.'6
9
It would appear from portions of the opinion of the court below that the tax is laid upon the privilege of soliciting interstate business on the theory that solicitation of customers for interstate commerce is a local activity subject to state taxation. However, the opinion below may also be read as construing the statutory term 'soliciting' more broadly, thereby resting the tax upon appellant's activities apart from soliciting new customers in Mississippi, namely the pick up and delivery of laundry and cleaning on regular routes within the State. Each construction of the statute raises different considerations. But clarification of the operating incidence of the tax is not required for disposition of this case since we find that the tax violates the Commerce Clause under either reading of the statute.
I.
10
In the long line of 'drummer' cases, beginning with Robbins v. Shelby County Taxing District, 1887, 120 U.S. 489, 7 S.Ct. 592, 30 L.Ed. 694,7 this Court has held that a tax imposed upon the solicitation of interstate business is a tax upon interstate commerce itself.8 Whether or not solicitation of interstate business may be regarded as a local incident of interstate commerce, the Court has not permitted state taxation to carve out this incident from the integral economic process of interstate commerce.9 As the Court noted last term in a case involving door-to-door solicitation of interstate business, 'Interstate commerce itself knocks on the local door.'10
11
If the Mississippi tax is imposed upon the privilege of soliciting interstate business, the tax stands on no better footing than a tax upon the privilege of doing interstate business. A tax so imposed cannot stand under the Commerce Clause.11 Spector Motor Service, Inc., v. O'Connor, 1951, 340 U.S. 602, 608—609, 71 S.Ct. 508, 511—512, 95 L.Ed. 573, and cases cited therein.
II.
12
On the assumption that the tax is imposed upon appellant's Mississippi activities of picking up and delivering laundry and cleaning, the 'peddler' cases are invoked in support of the tax. Under that line of decisions,12 this Court has sustained state taxation upon itinerant hawkers and peddlers on the ground that the local sale and delivery of goods is an essentially intrastate process whether a retailer operates from a fixed location or from a wagon. However, assuming for the purposes of this case that Mississippi imposes its $50 per truck tax only upon the privilege of conducting intrastate activities, the tax must be held invalid as one discriminating against interstate commerce.13
13
The $50 per truck tax is applicable only to vehicles used by a person 'soliciting business for a laundry not licensed in this state as such.' (Emphasis supplied.) Laundries licensed in Mississippi pay a fixed fee to the municipality in which located, plus a tax of $8 per truck upon each truck used in other municipalities.14 As a result, if appellant 'solicits' business in a Mississippi municipality, it must pay a tax of $50 per truck while a competitor located in another Mississippi locality must pay a tax of only $8 per truck. The 'peddler' cases are inapposite under such a showing of discrimination since they support state taxation only where no discrimination against interstate commerce appears either upon the face of the tax laws or in their practical operation.15
14
To sum up, we hold that the tax before us infringes the Commerce Clause under either interpretation of the operating incidence of the tax. The Commerce Clause created the nation-wide area of free trade essential to this country's economic welfare by removing state lines as impediments to intercourse between the states.16 The tax imposed in this case made the Mississippi state line into a local obstruction to the flow of interstate commerce that cannot stand under the Commerce Clause.
15
Reversed.
16
Mr. Justice BLACK dissents.
1
U.S.Const., Art. I, § 8.
2
Laws of Mississippi, 1944, c. 138, §§ 3, 45.
3
1951, 53 So.2d 89. The Mississippi Supreme Court also rejected appellant's claims under the Fourteenth Amendment. We do not reach these issues under our disposition of the case.
4
Spector Motor Service, Inc., v. O'Connor, 1951, 340 U.S. 602, 71 S.Ct. 508, 95 L.Ed. 573.
5
53 So.2d at page 90.
6
McLeod v. J. E. Dilworth Co., 1944, 322 U.S. 327, 64 S.Ct. 1023, 88 L.Ed. 1304; Crenshaw v. State of Arkansas, 1913, 227 U.S. 389, 400—401, 33 S.Ct. 294, 297—298, 57 L.Ed. 565.
7
Cases in this Court following the Robbins decision include: Corson v. State of Maryland, 1887, 120 U.S. 502, 7 S.Ct. 655, 30 L.Ed. 699; Asher v. State of Texas, 1888, 128 U.S. 129, 9 S.Ct. 1, 32 L.Ed. 368; Stoutenburgh v. Hennick, 1889, 129 U.S. 141, 9 S.Ct. 256, 32 L.Ed. 637; Brennan v. City of Titusville, 1894, 153 U.S. 289, 14 S.Ct. 829, 38 L.Ed. 719; Stockard v. Morgan, 1902, 185 U.S. 27, 22 S.Ct. 576, 46 L.Ed. 785; Caldwell v. State of North Carolina, 1903, 187 U.S. 622, 23 S.Ct. 229, 47 L.Ed. 336; Rearick v. Commonwealth of Pennsylvania, 1906, 203 U.S. 507, 27 S.Ct. 159, 51 L.Ed. 295; International Textbook Co. v. Pigg, 1910, 217 U.S. 91, 30 S.Ct. 481, 54 L.Ed. 678; Dozier v. State of Alabama, 1910, 218 U.S. 124, 30 S.Ct. 649, 54 L.Ed. 965; Crenshaw v. State of Arkansas, note 6, supra; Rogers v. State of Arkansas, 1913, 227 U.S. 401, 33 S.Ct. 298, 57 L.Ed. 569; Stewart v. People of State of Michigan, 1914, 232 U.S. 665, 34 S.Ct. 476, 58 L.Ed. 786; Davis v. Commonwealth of Virginia, 1915, 236 U.S. 697, 35 S.Ct. 479, 59 L.Ed. 795; Cheney Bros. Co. v. Commonwealth of Massachusetts, 1918, 246 U.S. 147, 38 S.Ct. 295, 62 L.Ed. 632; Real Silk Hosiery Mills v. City of Portland, 1925, 268 U.S. 325, 45 S.Ct. 525, 69 L.Ed. 982; Best & Co. v. Maxwell, 1940, 311 U.S. 454, 61 S.Ct. 334, 85 L.Ed. 275; Nippert v. City of Richmond, 1946, 327 U.S. 416, 66 S.Ct. 586, 90 L.Ed. 760.
8
'The negotiation of sales of goods which are in another state, for the purpose of introducing them into the state in which the negotiation is made, is interstate commerce.' 120 U.S. at page 497, 7 S.Ct. at page 596, 30 L.Ed. 694; Real Silk Hosiery Mills v. City of Portland, note 7, supra, 268 U.S. at page 335, 45 S.Ct. at page 526.
9
Nippert v. City of Richmond, note 7, supra, 327 U.S. at pages 422, 423, 66 S.Ct. at page 589.
10
Breard v. Alexandria, 1951, 341 U.S. 622, 636, 71 S.Ct. 920, 929, 95 L.Ed. 1233. In sustaining the ordinance before it as one that was neither an added financial burden on sales in commerce nor an exaction for the privilege of doing interstate commerce, the Court made the following statement pertinent to the instant case: 'While taxation and licensing of hawking or peddling, defined as selling and delivering in the state, has long been thought to show no violation of the Commerce Clause, solicitation of orders with subsequent interstate shipment has been immune from such an exaction.' 341 U.S. at page 638, 71 S.Ct. at page 930.
11
In McGoldrick v. Berwind-White Coal Mining Co., 1940, 309 U.S. 33, 58, 60 S.Ct. 388, 398, 84 L.Ed. 565, the Court sustained a tax 'conditioned upon a local activity, delivery of goods within the state upon their purchase for consumption.' It was in that context that Robbins v. Shelby County Taxing District, supra, was referred to as resting upon discrimination inherent in fixed-sum license taxes. 309 U.S. at pages 56—57, 60 S.Ct. at pages 397, 398; Best & Co. v. Maxwell, note 7, supra, 311 U.S. at pages 455 456, 61 S.Ct. at page 335; Nippert v. City of Richmond, note 7, supra, 327 U.S. at pages 424—425, 66 S.Ct. at page 590. Compare Freeman v. Hewit, 1946, 329 U.S. 249, 257—258, 67 S.Ct. 274, 279, 91 L.Ed. 265.
12
In the leading opinion, Emert v. State of Missouri, 1895, 156 U.S. 296, 15 S.Ct. 367, 39 L.Ed. 430, the Court reaffirmed Howe Machine Co. v. Gage, 1880, 100 U.S. 676, 25 L.Ed. 754, and other earlier cases. Subsequent additions to the line of 'peddler cases' include: Baccus v. State of Louisiana, 1914, 232 U.S. 334, 34 S.Ct. 439, 58 L.Ed. 627; Wagner v. City of Covington, 1919, 251 U.S. 95, 104, 40 S.Ct. 93, 64 L.Ed. 157, 168; Caskey Baking Co. v. Commonwealth of Virginia, 1941, 313 U.S. 117, 61 S.Ct. 881, 85 L.Ed. 1223.
13
Nippert v. City of Richmond, note 7, supra; Best & Co. v. Maxwell, note 7, supra; Hale v. Bimco Trading, Inc., 1939, 306 U.S. 375, 59 S.Ct. 526, 83 L.Ed. 771; Walling v. People of State of Michigan, 1886, 116 U.S. 446, 460—461, 6 S.Ct. 454, 460, 29 L.Ed. 691; Webber v. State of Virginia, 1881, 103 U.S. 344, 26 L.Ed. 565; Guy v. City of Baltimore, 1880, 100 U.S. 434, 25 L.Ed. 743; Welton v. State of Missouri, 1876, 91 U.S. 275, 23 L.Ed. 347.
14
Laws of Mississippi, 1944, c. 137, § 110, imposes the following tax:
"Upon each person operating a laundry other than a hand laundry, as follows:
In municipalities of class 1........ $120.00
In municipalities of class 2......... 80.00
In municipalities of classes 3 and 4. 60.00
In municipalities of classes 5, 6, 7 and elsewhere in
the county........................ 32.00
Upon each truck or other vehicle for such laundry
in a municipality other than where the laundry is
located............................ 8.00"
15
Caskey Baking Co. v. Commonwealth of Virginia, note 12, supra, 313 U.S. at pages 119—120, 61 S.Ct. at pages 882—883; Wagner v. City of Covington, note 12, supra, 251 U.S. at page 102, 40 S.Ct. at page 94; Emert v. State of Missouri, note 12, supra, 156 U.S. at page 311, 15 S.Ct. at page 370; Howe Machine Co. v. Gage, note 12, supra, 100 U.S. at page 679, 25 L.Ed. 754.
16
Gibbons v. Ogden, 1824, 9 Wheat. 1, 189, 6 L.Ed. 23; H. P. Hood & Sons v. Du Mond, 1949, 336 U.S. 525, 533—535, 538—539, 69 S.Ct. 657, 662—663, 665, 93 L.Ed. 865.
| 78
|
342 U.S. 402
72 S.Ct. 398
96 L.Ed. 448
SUTTONv.LEIB.
No. 143.
Submitted Dec. 3, 1951.
Decided March 3, 1952.
Rehearing Denied April 7, 1952.
See 343 U.S. 921, 72 S.Ct. 674.
Messrs. John Alan Appleman, Urbana, Ill., Edward D. Bolton, New York City, for petitioner.
Mr. Arthur M. Fitzgerald, Springfield, Ill., for respondent.
Mr. Justice REED delivered the opinion of the Court.
1
By reason of a divorce in an Illinois state court, with a judgment for monthly installments of alimony until remarriage, petitioner asserts that her divorced husband, the respondent Leib, is liable for unpaid installments of alimony. Asserting diversity jurisdiction, petitioner, a divorcee, filed suit in the United States District Court for the Southern District of Illinois. Claim for recovery is made, notwithstanding a later marriage by petitioner to another in Nevada, subsequently annulled in New York, for the period from the Nevada remarriage to her third presumably valid marriage in New York to a third man. To respondent's plea that the Illinois alimony obligation was finally ended by the Nevada remarriage of petitioner, Mrs. Sutton relied upon the New York annulment decree as determining that her Nevada marriage was void. She contends that the Full Faith and Credit Clause of the Federal Constitution requires that Illinois hold her Nevada marriage void ab initio by virtue of the New York annulment;1 that as the annulment decree obliterates the existence of her Nevada marriage respondent is liable for unpaid alimony until her New York marriage to Sutton.
2
The trial court rendered summary judgment for respondent and the Court of Appeals for the Seventh Circuit affirmed. 188 F.2d 766. The affirmance was bottomed on the conclusion that, as the Nevada marriage of petitioner was valid in Nevada, it terminated the liability for alimony under the Illinois judgment of divorce. The court thus gave full faith and credit to the Nevada marriage rather than the New York annulment.2 Because disposition of this case required treatment of an important question of federal law, review was granted on a writ of certiorari. 342 U.S. 846, 72 S.Ct. 73.
3
Facts. Petitioner, Verna Sutton, divorced respondent, Leib, in Illinois in 1939, and under the terms of the decree of divorce was awarded $125 'on or before the first day of each calendar month * * * for so long as the plaintiff shall remain unmarried, or for so long as this decree remains in full force and effect.' On July 3, 1944, in Reno, Nevada, petitioner married Walter Henzel who had that day obtained a Nevada divorce from Dorothy Henzel, a resident of New York who had not been served in Nevada and who made no appearance there. One month later, August 3, 1944, Dorothy Henzel brought a separate maintenance proceeding in the courts of New York. Walter Henzel defended this suit. The proceeding resulted in a decree in Dorothy Henzel's favor, declaring Walter Henzel's Nevada divorce from her 'null and void.' With the service of Dorothy's process on Walter, petitioner ceased living with him, and in January 1945 filed suit in New York for annulment of her marriage to him. In this proceeding Walter Henzel also appeared. On June 6, 1947, the New York court entered an interlocutory decree after trial which became final three months thereafter. This judgment declared that petitioner's marriage to Henzel was 'null and void' for the reason that he 'had another wife living at the time of said marriage.'
4
There was no appeal in Nevada from the Nevada divorce of the Henzels. No further action was taken in Nevada concerning the marriage of Henzel and petitioner, and no appeal taken in New York from the judgment holding the Henzels' Nevada divorce null and void or from the judgment annulling the Nevada marriage of Henzel and petitioner. The jurisdiction of the New York courts to enter the judgments is unquestioned.
5
Analysis of Issues. Collection of alimony is sought against respondent who was not a party to any of the judicial proceedings in Nevada or New York and appears in none of the records from either state. Illinois law as to respondent's liability governs the federal court's decision of this case.3 But the responsibility for the decision of federal constitutional issues involved rests finally on this Court.4 This controversy presents, fundamentally, a problem of Illinois law, to wit, the Illinois rule as to the effect of a subsequently annulled second marriage on the alimony provisions of an Illinois divorce awarding support until remarriage.
6
As the Full Faith and Credit Clause requires Illinois to recognize the validity of records and judicial proceedings of sister states, the conclusion will not vary because the post-divorce recorded events underlying this litigation took place in other states than Illinois. This is not an alleged conflict of decisions between states such as existed in certain tax and estate cases.5 Rather the situation more nearly approaches Barber v. Barber, 323 U.S. 77, 65 S.Ct. 137, 89 L.Ed. 82. There Tennessee refused full faith and credit to a North Carolina judgment for arrears of alimony on the ground of its lack of finality in North Carolina. We reversed Tennessee's decision, nor on the ground of error in Tennessee rules of law but on our determination that the North Carolina judgment was final and therefore enforceable as a matter of federal law in Tennessee under the Full Faith and Credit Clause. So in this case, Illinois' conclusion as to this claim for alimony must be reached under Illinois law on the basis of giving the various proceedings the effect to which the Constitution entitles them. In this way the Full Faith and Credit Clause performs its intended function of avoiding relitigation in other states of adjudicated issues, while leaving to the law of the forum state the application of the predetermined facts to the new problem. Riley v. New York Trust Co., 315 U.S. 343, 348—349, 62 S.Ct. 611—612, 82 L.Ed. 885.
7
Legal Effect of Nevada and New York Events. Petitioner and Henzel were married in Nevada. Thereafter petitioner brought her putative husband before the New York court. Petitioner and Henzel subjected themselves to the jurisdiction of the New York court and its decree annulling their Nevada marriage was entered with jurisdiction, so far as this record shows, of the parties and the subject matter. The burden is upon one attacking the validity of a judgment to demonstrate its invalidity.6 That judgment is res judicata between the parties and is unassailable collaterally.7 As both parties were before the New York court, its decree of annulment of their Nevada marriage ceremony is effective to determine that the marriage relationship of petitioner and Henzel did not exist at the time of filing the present complaint in Illinois for unpaid alimony. The effect in Illinois of the New York declaration of nullity on the obligation for alimony is a matter of Illinois law hereinafter treated. The New York annulment determines the marriage relationship that is the marital status of petitioner and Henzel, just as any divorce judgment determines such relationship. If the Nevada court had had jurisdiction by personal service in the state or appearance in the case of Henzel and the first Mrs. Henzel, its decree of divorce would have been unassailable in other states.8 So as to the New York decree annulling the marriage, New York had such jurisdiction of the parties and its decree is entitled to full faith throughout the Nation, in Nevada as well as in Illinois.9
8
The New York invalidation of the Nevada divorce of the Henzels stands in the same position. As Mrs. Henzel was neither personally served in Nevada nor entered her appearance, the Nevada divorce decree was subject to attack and nullification in New York for lack of jurisdiction over the parties in a contested action.10
9
This leads us to hold that the conclusion of the Court of Appeals quoted in note 2, supra, is incorrect under the facts of this case. The marriage ceremony performed for petitioner and Henzel in Nevada must be held invalid because then Henzel had a living wife. The New York annulment held the Nevada marriage void. Nevada declares bigamous marriages void.11
10
Conclusion. The determination that the New York adjudications must be given full faith and credit in Illinois, however, does not decide this controversy. Although the federal courts must give the same force and effect to the New York decrees as Illinois does,12 a question of state law remains. Does Illinois give the marriage ceremony of an annulled marriage sufficient vitality to release Leib, the respondent, from his obligation to pay alimony subsequently due?
11
Full faith to the New York annulment, which is conclusive everywhere as to the marriage status of petitioner and Henzel, compels Illinois to reat their Nevada marriage ceremony as void.13 The force of that rule, however, does not require that the effect of the New York annulment on rights incident to this declaration of the invalidity of the Nevada marriage ceremony shall be the same in all states. Annulment is, in respect to its effect, analogous to divorce. A valid divorce, one spouse appearing only by constructive service, that frees the parties from the bonds of matrimony throughout the United States does not require a second state to accord its terms the same result in litigation over separable legal rights as the decree would have in the courts of the state entering the decree.14 Without reference to the effect of a divorce on incidents of the marriage relation where both spouses are actually before the court, we think it equally clear, as a matter of constitutional law, that Illinois is free to decide for itself the effect of New York's declaration of annulment on the obligations of respondent, a stranger to that decree.
12
Although the present proceeding necessarily presents questions of state law, resting as it does upon diversity jurisdiction, the case does not present any nonfederal issue suitable for separation and determination in the state courts.15 The remaining matters of state law are for the decision of the federal courts.16
13
It is frequently said, as a legal fiction, that annulment makes the annulled marriage ceremony as though it had never occurred. That fiction is variously treated in different jurisdictions.17 For example in New York, the petitioner apparently would recover alimony after annulment but not for the period between the remarriage ceremony and the annulment.18
14
The Court of Appeals of the Seventh Circuit has declared on an issue as to whether the petitioner's claim for alimony had been adjusted that there has been in this controversy no compromise of a disputed claim. See note 15, supra. We accept that ruling. That court has not had occasion to consider the effect of the annulment under the law of Illinois on the respondent's alimony obligation.
15
Where there had been a valid foreign marriage, followed by an annulment, based partly on issues not here involved, Illinois has held that the obligation of a former husband to pay alimony until the wife 'remarry' is terminated by the remarriage.19 What the Illinois rule is when the foreign (Nevada) marriage is judicially declared invalid, under present circumstances, or whether respondent, if liable at all, is liable for the period during which Henzel may have owed support under a rule such as that of Sleicher v. Sleicher, 251 N.Y. 366, 167 N.E. 501, has not, so far as we know, been determined.
16
The judgment of the Court of Appeals should be reversed and the cause remanded to the Court of Appeals for further proceedings in conformity with this opinion.
17
It is so ordered.
18
Reversed and remanded.
19
Mr. Justice BLACK agrees with the Court of Appeals and would affirm its judgment.
20
Mr. Justice FRANKFURTER, concurring.
21
This case illustrates what little excuse is left for diversity jurisdiction, certainly since Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, has curbed the unwarranted freedom of federal courts to fashion rules of local law in defiance of local law. For my Brother REED naturally enough concludes that the turning point of this case is a matter of Illinois law having no relation whatever to the essential functions which federal courts serve, and a matter which is peculiarly ill-suited for determination by a federal court. The issue in this case is whether the obligation imposed by an Illinois divorce decree to pay alimony 'for so long as plaintiff shall remain unmarried' ceases under Illinois law when the plaintiff goes through the form of another marriage ceremony regardless of the binding validity of such a ceremony. Illinois is free to consult solely her own will whether such a provision in a decree relates merely to ceremony or requires a union with a spouse legally free to marry. On that crucial issue, we are told, there is no Illinois law. By what seems to me undesirable judicial administration, the ascertainment for all I know the formulation—of Illinois law is committed to a federal court which in the very nature of things can render only a tentative and indecisive judgment.
22
Tentative and indecisive, because whatever view the Court of Appeals for the Seventh Circuit takes on this question may be authoritatively supplanted by the only court that can finally settle the issue, namely, the Supreme Court of Illinois. Such a decision from the Illinois Supreme Court can readily be solicited by the plaintiff through the Illinois declaratory judgment procedure. It is precisely the kind of controversy for which the utility of the device of a declaratory judgment has been so fulsomely acclaimed. Instead of availing itself of this modern procedure, the Court makes itself a party to a discord which passeth understanding.
23
No doubt the Court of Appeals may tentatively answer this question of Illinois law so far as the immediate parties are concerned. But it is not conductive to the interests of law in general that this Court should compel a decision in a federal court which tomorrow or the day after may be definitively contradicted by the State court with the final say. I would remand the case to the Court of Appeals to be held by it until the plaintiff seeks with all deliberate speed a decision on the crucial question of the case in the Illinois courts.
24
Subject to this qualification, I agree with the opinion of the Court.
1
'Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.' U.S. Constitution, Art. IV, § 1.
Pursuant to the section, Congress early prescribed the effect substantially in the words now used:
'Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.' 28 U.S.C. § 1738, 28 U.S.C.A. § 1738.
2
'We have searched the numerous cases decided by the Supreme Court of the United States on the subject of migratory divorce for a definitive holding is to the judicial status of such divorce in the state that decreed it. It appears to be assumed that the decree is valid and binding in the state where it is rendered. Thus Mr. Justice Frankfurter remarks in his concurring opinion, Williams v. North Carolina, 317 U.S. 287, 307, 63 S.Ct. 207, 217, 87 L.Ed. 279, 'It is indisputable that the Nevada decrees here, like the Connecticut decree in the Haddock (v. Haddock) case, (201 U.S. 562, 26 S.Ct. 525, 50 L.Ed. 867) were valid and binding in the state where they were rendered.' And Mr. Justice Murphy, concurring in Williams v. State of North Carolina, 325 U.S. 226, 239, 65 S.Ct. 1092, 1099, 89 L.Ed. 1577, states that 'The State of Nevada has unquestioned authority, consistent with procedural due process, to grant divorces on whatever basis it sees fit to all who meet its statutory requirements. It is entitled, moreover, to give to its divorce decrees absolute and binding finality within the confines of its borders.' And Mr. Justice Rutledge, dissenting in the same case, 325 U.S. at page 244, 65 S.Ct. at page 1102 (89 L.Ed. 1577), comments on the fact that the Nevada judgment was not voided by the decision. 'It could not be, if the same test applies to sustain it as upholds the North Carolina convictions. It stands, with the marriages founded upon it, unimpeached.' He and Mr. Justice Black, also dissenting, both call attention to the fact that the Court, in its decision, does not hold that the Nevada judgment is invalid in Nevada. Hence, in spite of the absence of a clear-cut statement in any of the main opinions of the Court as to the status of the Nevada decree in Nevada after a successful extraterritorial challenge of it, we think we may spell out authority for our assumption that it survives such challenge and remains in full force and effect within the confines of the state of Nevada until and unless it is set aside upon review in that state.
'Assuming the validity of the divorce in Nevada, then the party or parties thereto resumed full marital capacity in that state. It follows that, so far as the state of Nevada is concerned, there was no inhibition against the remarriage of Walter Henzel in that state, and no reason appears for challenging his marriage there to plaintiff immediately after the decree of divorce was rendered. Under the terms of the Illinois decree of divorce of plaintiff and defendant, such marriage immediately terminated the obligation of the latter to continue the alimony payments required thereby. We think that obligation was not reinstated and revived by the subsequent annulment of the Nevada marriage in New York.' 188 F.2d at page 768.
3
Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188; Angel v. Bullington, 330 U.S. 183, 67 S.Ct. 657, 91 L.Ed. 832.
4
Barber v. Barber, 323 U.S. 77, 81, 65 S.Ct. 137, 138, 89 L.Ed. 82.
5
Worcester County Co. v. Riley, 302 U.S. 292, 58 S.Ct. 185, 82 L.Ed. 268, and cases cited. In this case this Court held, 302 U.S. at page 299, 58 S.Ct. at page 187, 82 L.Ed. 268, as a basis that the action was against a state without its consent, that the Full Faith and Credit Clause does not require uniformity of decision as to domicile between the courts of different states. Cf. Texas v. Florida, 306 U.S. 398, 410, 59 S.Ct. 563, 569, 83 L.Ed. 817.
Riley v. New York Trust Co., 315 U.S. 343, 62 S.Ct. 608, 86 L.Ed. 885. In this case Georgia had determined that decedent's domicile was Georgia. New York had determined the domicile was New York. In an interpleader suit in Delaware, involving the transfer of stock of a Delaware corporation to one of the two personal representatives of decedent appointed by the respective states, this Court held, where neither personal representative had been a party to the determination of domicile in the state of the other, Delaware was free to determine the question of domicile and require delivery of the stock to that representative.
6
Barber v. Barber, supra, 323 U.S. at page 86, 65 S.Ct. at page 141, 89 L.Ed. 82; Cook v. Cook, 342 U.S. 126, 128, 72 S.Ct. 157, 159.
7
Treinies v. Sunshine Mining Co., 308 U.S. 66, 76—78, 60 S.Ct. 44, 49, 50, 84 L.Ed. 85.
8
Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 92 L.Ed. 1429.
9
Treinies v. Sunshine Mining Co., supra; Milliken v. Meyer, 311 U.S. 457, 462, 61 S.Ct. 339, 342, 85 L.Ed. 278.
10
Cook v. Cook, supra, citing Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577; Rice v. Rice, 336 U.S. 674, 69 S.Ct. 751, 93 L.Ed. 957. Cf. Sherrer v. Sherrer, supra.
11
Nev.Comp.Laws, 1929, § 4066; Poupart v. District Court, 34 Nev. 336, 123 P. 769.
12
See note 1, and Union & Planters' Bank v. Memphis, 189 U.S. 71, 75, 23 S.Ct. 604, 606, 47 L.Ed. 712.
13
Williams v. North Carolina, 317 U.S. 287, 291—304, 63 S.Ct. 207, 209—216, 87 L.Ed. 279.
14
Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561. See MacKay v. MacKay, 279 App.Div. 350, 110 N.Y.S.2d 82.
15
Propper v. Clark, 337 U.S. 472, 489, 69 S.Ct. 1333, 1343, 93 L.Ed. 1480 et seq., and cases cited.
Furthermore the Court of Appeals has already determined that certain payments of alimony made to petitioner by respondent in settlement of installments accruing prior to the Nevada marriage do not amount to a compromise of the disputed claim. 188 F.2d at pages 767—768. Cf. Moore v. Shook, 276 Ill. 47, 55, 114 N.E. 592; Darst v. Lang, 367 Ill. 119, 10 N.E.2d 659.
16
Meredith v. City of Winter Haven, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9; Propper v. Clark, supra, 337 U.S. at page 486, 69 S.Ct. at page 1341, 93 L.Ed. 1480.
17
In re Wombwell's Settlement, (1922) 2 Ch. 298. Here a marriage settlement was in trust for the settlor 'until the said intended marriage' and thereafter on declared trusts for the spouses. The marriage was annulled. The settlor was held entitled to the funds as a valid marriage was intended and this one was void ab initio. Likewise Chapman v. Bradley, 33 L.J.Ch. 139. Cf. In re Garnett, 74 L.J.Ch. 570; Bishop v. Smith, 1 Vict.L.R. 313; P. v. P., (1916) 2 I.R. 400.
See Vernier, American Family Laws, § 53, Suits to Annul Effect of Judgment, and § 48, Issue of Prohibited Marriages (this includes annulment).
New York declares some marriages void from the time their nullity is declared. McKinney's Consolidated Laws of New York, c. 14, Book 14, Domestic Relations Law, § 7.
For effect on different incidents, see Henneger v. Lomas, 145 Ind. 287, 44 N.E. 462, 32 L.R.A. 848 (seduction, tort); Burney v. State, 111 Tex.Cr.R. 599, 13 S.W.2d 375 (seduction, criminal); Miller v. Wall, 216 Ala. 448, 113 So. 501 (marriage, later annulled, held annulment did not postpone distribution of estate, distributable marriage); Deeds v. Strode, 6 Idaho 317, 55 P. 656, 43 L.R.A. 207 (civil action); Figoni v. Figoni, 211 Cal. 354, 295 P. 339 (distribution of community property).
18
This avoids double support to the wife. Sleicher v. Sleicher, 251 N.Y. 366, 167 N.E. 501. See Frank v. Carter, 219 N.Y. 35, 113 N.E. 549, L.R.A.1917B, 1288 (husband liable for necessaries prior to annulment); In the Matter of Moncrief, 235 N.Y. 390, 139 N.E. 550, 27 A.L.R. 1117 (child of annulled marriage, illegitimate).
The Sleicher case called forth many comments when it was handed down. See 43 Harv.L.Rev. 109; 30 Col.L.Rev. 877; 25 Ill.L.Rev. 99; 14 Minn.L.Rev. 93; 39 Yale L.J. 133.
19
Lehmann v. Lehmann, 225 Ill.App. 513, 522, 526, saying: 'We think that said words as so used were intended by the parties to refer to the ceremony or act of marriage as distinguished from the status or relation thereafter.'
'Even though it be considered that such marriage was not a valid one in Illinois, it was valid in New Jersey, where performed, and also valid in their subsequent successive domiciles, and we think that under all the facts disclosed it should be held, contrary to the finding of the chancellor in the decree appealed from, that she remarried within the meaning of the words contained in said divorce decree of April 1, 1915, and in the written agreement entered into between the parties about that time, and that she thereby elected to forfeit, and did forfeit, her right to receive alimony for her own support thereafter from respondent.'
The Illinois court was influenced by the practical construction given to the alimony decree by the parties. 225 Ill.App. at pages 516, 527. See Wilson v. Cook, 256 Ill. 460, 100 N.E. 222, 43 L.R.A.,N.S., 365.
| 1011
|
342 U.S. 421
72 S.Ct. 405
96 L.Ed. 469
DAY-BRITE LIGHTING, Inc.v.STATE OF MISSOURI.
No. 317.
Argued Jan. 10, 1952.
Decided March 3, 1952.
Rehearing Denied April 7, 1952.
See 343 U.S. 921, 72 S.Ct. 674.
Mr. Henry C. M. Lamkin, St. Louis, Mo., for appellant.
Mr. John R. Baty, Kansas City, Mo., for appellee.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Missouri has a statute, Mo.Rev.Stat., 1949, § 129.060, V.A.M.S., first enacted in 1897, which was designed to end the coercion of employees by employers in the exercise of the franchise. It provides that an employee may absent himself from his employment for four hours between the opining and closing of the polls without penalty, and that any employer who among other things deducts wages for that absence is guilty of a misdemeanor.1
2
Appellant is a Missouri corporation doing business in St. Louis. November 5, 1946, was a day for general elections in Missouri, the polls being open from 6 A.M. to 7 P.M. One Grotemeyer, an employee of appellant, was on a shift that worked from 8 A.M. to 4:30 P.M. each day, with thirty minutes for lunch. His rate of pay was $1.60 an hour. He requested four hours from the scheduled work day to vote on November 5, 1946. That request was refused; but Grotemeyer and all other employees on his shift were allowed to leave at 3 P.M. that day, which gave them four consecutive hours to vote before the polls closed.
3
Grotemeyer left his work at 3 P.M. in order to vote and did not return to work that day. He was not paid for the hour and a half between 3 P.M. and 4:30 P.M. Appellant was found guilty and fined for penalizing Grotemeyer in violation of the statute. The judgment was affirmed by the Missouri Supreme Court, 362 Mo. 299, 240 S.W.2d 886, over the objection that the statute violated the Due Process and the Equal Protection Clauses of the Fourteenth Amendment and the Contract Clause of Art. I, § 10.
4
The liberty of contract argument pressed on us is reminiscent of the philosophy of Lochner v. State of New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937, which invalidated a New York law prescribing maximum hours for work in bakeries; Coppage v. State of Kansas, 236 U.S. 1, 35 S.Ct. 240, 59 L.Ed. 441, which struck down a Kansas statute outlawing 'yellow dog' contracts; Adkins v. Children's Hospital of District of Columbia, 261 U.S. 525, 43 S.Ct. 394, 67 L.Ed. 785, which held unconstitutional a federal statute fixing minimum wage standards for women in the District of Columbia, and others of that vintage. Our recent decisions make plain that we do not sit as a super-legislature to weigh the wisdom of legislation nor to decide whether the policy which it expresses offends the public welfare. The legislative power has limits, as Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519, holds. But the state legislatures hve constitutional authority to experiment with new techniques; they are entitled to their own standard of the public welfare; they may within extremely broad limits control practices in the business-labor field, so long as specific constitutional prohibitions are not violated and so long as conflicts with valid and controlling federal laws are avoided. That is the essence of West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703; Nebbia v. People of State of New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940; Olsen v. State of Nebraska, ex rel. Western Reference & Bond Ass'n, 313 U.S. 236, 61 S.Ct. 862, 85 L.Ed. 1305; Lincoln Federal Labor Union No. 19129, A.F. of L. v. Northwestern Iron & Metal Co., 335 U.S. 525, 69 S.Ct. 251, 93 L.Ed. 212; and California State Auto. Ass'n v. Maloney, 341 U.S. 105, 71 S.Ct. 601, 95 L.Ed. 788.
5
West Coast Hotel Co. v. Parrish, supra, overruling Adkins v. Children's Hospital, supra, held constitutional a state law fixing minimum wages for women. The present statutes contains in form a minimum wage requirement. There is a difference in the purpose of the legislation. Here it is not the protection of the health and morals of the citizen. Missouri by this legislation has sought to safeguard the right of suffrage by taking from employers the incentive and power to use thier leverage over employees to influence the vote. But the police power is not confined to a narrow category; it extends, as stated in Noble State Bank v. Haskell, 219 U.S. 104, 111, 31 S.Ct. 186, 188, 55 L.Ed. 112, to all the great public needs. The protection of the right of suffrage under our scheme of things is basic and fundamental.2
6
The only semblance of substance in the constitutional objection to Missouri's law is that the employer must pay wages for a period in which the employee performs no services. Of course many forms of regulation reduce the net return of the enterprise; yet that gives rise to no constitutional infirmity. See Queenside Hills Co. v. Saxl, 328 U.S. 80, 66 S.Ct. 850, 90 L.Ed. 1096; California Auto. Ass'n v. Maloney, supra. 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 cases 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 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, Coppage, and Adkins cases.
7
The classification of voters so as to free employees from the domination of employers is an attempt to deal with an evil to which the one group has been exposed. The need for that classification is a matter for legislative judgment, American Federation of Labor v. American Sash & Door Co., 335 U.S. 538, 69 S.Ct. 258, 93 L.Ed. 222, and does not amount to a denial of equal protection under the laws.
8
Affirmed.
9
Mr. Justice FRANKFURTER concurs in the result.
10
Mr. Justice JACKSON, dissenting.
11
The constitutional issue in this case, if not very vital in its present application, surely is a debatable one. Two state courts of last resort, the only ones to consider similar legislation, have held it unconstitutional.1 Only unreviewed decisions of intermediate courts2 can be cited in support of the Court's holding.
12
Appellant employed one Grotemeyer, under a union contract, on an hourly basis at $1.60 per hour for each hour worked. He demanded a four-hour leave of absence, with full pay, on election day to do campaigning and to get out the vote. It is stipulated that his residence was 200 feet from the polling place and that it actually took him about five minutes to vote. Appellant closed the day's work for all employees one and one-half hours earlier than usual, which gave them the statutory four hours before the polls closed. For failure to pay something less than $3 for this hour and a half which Grotemeyer did not work and for which his contract did not provide that he should be paid, the employer is convicted of crime under the statute set forth in the Court's opinion.
13
To sustain this statute by resort to the analogy of minimum wage laws seems so farfetched and unconvincing as to demonstrate its weakness rather than its strength. Because a State may require payment of a minimum wage for hours that are worked it does not follow that it may compel payment for time that is not worked. To overlook a distinction so fundamental is to confuse the point in issue.
14
The Court, by speaking of the statute as though it applies only to industry, sinister and big, further obscures the real principle involved. The statute plainly requires farmers, small service enterprises, professional offices, housewives with domestic help, and all other employers, not only to allow their employees time to vote, but to pay them for time to do so. It does not, however, require the employee to use any part of such time for that purpose. Such legislation stands in a class by itself and should not be uncritically commended as a mere regulation of 'practices in the business-labor field.'
15
Obtaining a full and free expression from all qualified voters at the polls is so fundamental to a successful representative government that a State rightly concerns itself with the removal of every obstruction to the right and opportunity to vote freely. Courts should go far to sustain legislation designed to relieve employees from obligations to private employers which would stand in the way of their duty as citizens.
16
But there must be some limit to the power to shift the whole voting burden from the voter to someone else who happens to stand in some economic relationship to him. Getting out the vote is not the business of employers; indeed, I have regarded it as a political abuse when employers concerned themselves with their employees' voting. It is either the voter's own business or the State's business. I do not question that the incentive which this statute offers will help swell the vote; to require that employees be paid time-and-a-half would swell it still more and double-time would do even better. But does the success of an enticement to vote justify putting its cost on some other citizen?
17
The discriminatory character of this statute is flagrant. It is obvious that not everybody will be paid for voting and the 'rational basis' on which the State has ordered that some be paid while others are not eludes me. If there is a need for a subsidy to get out the vote, no reason is apparent to me why it should go to one who lives 200 feet from his polling place but not to a self-employed farmer who may have to lay down his work and let his equipment idle for several hours while he travels several miles over bad fall roads to do his duty as a citizen. If he has a hired man, he must also lose his hand's time and his pay. Perhaps some plan will be forthcoming to pay the farmer by requiring his mortgagee to rebate some proportion of the interest on the farm mortgage if he will vote. It would not differ in principle. But no way occurs to me by which the doctor can charge some patient or the lawyer some client for the call he could not receive while he was voting.
18
I suppose a State itself has considerable latitude to offer inducements to voters who do not value their franchise enough to vote on their own time, even if they seem to me corrupting or discriminating ones. Perhaps my difficulty with today's decision is that I cannot rise above an old-fashioned valuation of American citizenship which makes a state-imposed pay-for-voting system appear to be a confession of failure of popular representative government.
19
It undoubtedly is the right of every union negotiating with an employer to bargain for voting time without loss of pay. It is equally the right of any individual employee to make that part of his hire. I have no reason to doubt that a large number of voters already have voluntary arrangements which make their absence for voting without cost. But a contitutional philosophy which sanctions intervention by the State to fix terms of pay without work may be available tomorrow to give constitutional sanction to state-imposed terms of employment less benevolent.
1
'Any person entitled to vote at any election in this state shall, on the day of such election, be entitled to absent himself from any services or employment in which he is then engaged or employed, for a period of four hours between the times of opening and closing the polls; and such voter shall not, because of so absenting himself, be liable to any penalty; provided, however, that his employer may specify the hours during which such employee may absent himself as aforesaid. Any person or corporation who shall refuse to any employee the privilege hereby conferred, or shall discharge or threaten to discharge any employee for absenting himself from his work for the purpose of said election, or shall cause any employee to suffer any penalty or deduction of wages because of the exercise of such privilege, or who shall, directly or indirectly, violate the provisions of this section, shall be deemed guilty of a misdemeanor, and on conviction thereof be fined in any sum not exceeding five hundred dollars.'
2
Decisions contrary to that of the Missouri Supreme Court in this case have been rendered by the Court of Appeals of Kentucky in Illinois Central R. Co. v. Commonwealth, 305 Ky. 632, 204 S.W.2d 973, and by the Supreme Court of Illinois in People v. Chicago, M. & St. P.R. Co., 306 Ill. 486, 138 N.E. 155, 28 A.L.R. 610. But cf. Zelney v. Murphy, 387 Ill. 492, 56 N.E.2d 754. The Appellate Division of the Supreme Court of New York in People v. Ford Motor Co., 271 App.Div. 141, 63 N.Y.S.2d 697, and the Appellate Department of the Superior Court of California in Ballarini, in Behalf of Lodge 1327, etc. v. Schlage Lock Co., 100 Cal.App.2d Supp. 859, 226 P.2d 771, held in accord with Missouri. For a review of legislation in this field, see 47 Col.L.Rev. 135.
1
Illinois Central R. Co. v. Commonwealth, 305 Ky. 632, 204 S.W.2d 973; People v. Chicago, M. & St. P.R. Co., 306 Ill. 486, 138 N.E. 155. Cf. Zelney v. Murphy, 387 Ill. 492, 56 N.E.2d 754.
2
People v. Ford Motor Co., 271 App.Div. 141, 63 N.Y.S.2d 697; Ballarini, in Behalf of Lodge 1327, etc. v. Schlage Lock Co., 100 Cal.App.2d Supp. 859, 226 P.2d 771.
| 12
|
342 U.S. 485
72 S.Ct. 380
96 L.Ed. 517
ADLER et al.v.BOARD OF EDUCATION OF CITY OF NEW YORK.
No. 8.
Argued Jan. 3, 1952.
Decided March 3, 1952.
Mr. Osmond K. Fraenkel, New York City, for appellants.
Mr. Michael A. Castaldi, New York City, for appellee.
Mr. Wendell P. Brown, Albany, N.Y., for the State of New York amicus curiae by special leave of Court.
Mr. Justice MINTON delivered the opinion of the Court.
1
Appellants brought a declaratory judgment action in the Supreme Court of New York, Kings County, praying that § 12—a of the Civil Service Law, McK. Consol. Laws, c. 7,1 as implemented by the so-called Feinberg Law,2 be declared unconstitutional, and that action by the Board of Education of the City of New York thereunder be enjoined. On motion for judgment on the pleadings, the court held that subdivision (c) of § 12—a, the Feinberg Law, and the Rules of the State Board of Regents promulgated thereunder violated the Due Process Clause of the Fourteenth Amendment, and issued an injunction. Lederman v. Board of Education, 196 Misc. 873, 95 N.Y.S.2d 114. The Appellate Division of the Supreme Court reversed, 276 App.Div. 527, 96 N.Y.S.2d 466, and the Court of Appeals affirmed the judgment of the Appellate Division, Thompson v. Wallin, 301 N.Y. 476, 95 N.E.2d 806. The appellants come here by appeal under 28 U.S.C. § 1257.
2
Section 12—a of the Civil Service Law, hereafter referred to as § 12—a, is set forth in the margin.3 To implement this law, the Feinberg Law was passed, adding a new section, § 3022, to the Education Law of the State of New York, Mck.Consol. Laws, c. 16, which section so far as here pertinent is set forth in the margin.4 The Feinberg Law was also to implement s 3021 of the Education Law of New York.5 The constitutionality of this section was not attacked in the proceedings below.
3
The preamble of the Feinberg Law, § 1, makes elaborate findings that members of subversive groups, particularly of the Communist Party and its affiliated organizations, have been infiltrating into public employment in the public schools of the State; that this has occurred and continues notwithstanding the existence of protective statutes designed to prevent the appointment to or retention in employment in public office, and particularly in the public schools, of members of any organizations which teach or advocate that the government of the United States or of any state or political subdivision thereof shall be overthrown by force or violence or by any other unlawful means. As a result, propaganda can be disseminated among the children by those who teach them and to whom they look for guidance, authority, and leadership. The Legislature further found that the members of such groups use their positions to advocate and teach their doctrines, and are frequently bound by oath, agreement, pledge, or understanding to follow, advocate and teach a prescribed party line or group dogma or doctrine without regard to truth or free inquiry. This propaganda, the Legislature declared, is sufficiently subtle to escape detection in the classroom; thus, the menace of such infiltration into the classroom is difficult to measure. Finally, to protect the children from such influence, it was thought essential that the laws prohibiting members of such groups, such as the Communist Party or its affiliated organizations, from obtaining or retaining employment in the public schools be rigorously enforced. It is the purpose of the Feinberg Law to provide for the disqualification and removal of superintendents of schools, teachers, and employees in the public schools in any city or school district of the State who advocate the overthrow of the Government by unlawful means or who are members of organizations which have a like purpose.
4
Section 3022 of the Education Law, added by the Feinberg Law, provides that the Board of Regents, which has charge of the public school system in the State of New York, shall, after full notice and hearing, make a listing of organizations which it finds advocate, advise, teach, or embrace the doctrine that the government should be overthrown by force or violence or any other unlawful means, and that such listing may be amended and revised from time to time.
5
It will be observed that the listings are made only after full notice and hearing. In addition, the Court of Appeals construed the statute in conjunction with Article 78 of the New York Civil Practice Act, Gilbert-Bliss' N.Y.Civ.Prac., Vol. 6B, so as to provide listed organizations a right of review.
6
The Board of Regents is further authorized to provide in rules and regulations, and has so provided, that membership in any listed organization, after notice and hearing, 'shall constitute prima facie evidence for disqualification for appointment to or retention in any office or position in the school system';6 but before one who is an employee or seeks employment is severed from or denied employment, he likewise must be given a full hearing with the privilege of being represented by counsel and the right to judicial review.7 It is § 12—a of the Civil Service Law, as implemented by the Feinberg Law as above indicated, that is under attack here.
7
It is first argued that the Feinberg Law and the rules promulgated thereunder constitute an abridgment of the freedom of speech and assembly of persons employed or seeking employment in the public schools of the State of New York.
8
It is clear that such persons have the right under our law to assemble, speak, think and believe as they will. American Communications Ass'n v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925. It is equally clear that they have no right to work for the State in the school system on their own terms. United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754. They may work for the school system upon the reasonable terms laid down by the proper authorities of New York. If they do not choose to work on such terms, they are at libertyto retain their beliefs and associations and go elsewhere. Has the State thus deprived them of any right to free speech or assembly? We think not. Such persons are or may be denied, under the statutes in question, the privilege of working for the school system of the State of New York because, first, of their advocacy of the overthrow of the government by force or violence, or, secondly, by unexplained membership in an organization found by the school authorities, after notice and hearing, to teach and advocate the overthrow of the government by force or violence, and known by such persons to have such purpose.
9
The constitutionality of the first proposition is not questioned here. Gitlow v. New York, 268 U.S. 652, 667—672, 45 S.Ct. 625, 630—632, 69 L.Ed. 1138, construing § 161 of the New York Penal Law, McK. Consol. Laws, c. 40.
10
As to the second, it is rather subtly suggested that we should not follow our recent decision in Garner v. Board of Public Works of Los Angeles, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317. We there said: 'We think that a municipal employer is not disabled because it is an agency of the State from inquiring of its employees as to matters that may prove relevant to their fitness and suitability for the public service. Past conduct may well relate to present fitness; past loyalty may have a reasonable relationship to present and future trust. Both are commonly inquired into in determining fitness for both high and low positions in private industry and are not less relevant in public employment.' 341 U.S. at page 720, 71 S.Ct. at page 912.
11
We adhere to that case. A teacher works in a sensitive area in a schoolroom. There he shapes the attitude of young minds towards the society in which they live. In this, the state has a vital concern. It must preserve the integrity of the schools. That the school authorities have the right and the duty to screen the officials, teachers, and employees as to their fitness to maintain the integrity of the schools as a part of ordered society, cannot be doubted. One's associates, past and present, as well as one's conduct, may properly be considered in determining fitness and loyalty. From time immemorial, one's reputation has been determined in part by the company he keeps. In the employment of officials and teachers of the school system, the state may very properly inquire into the company they keep, and we know of no rule, constitutional or otherwise, that prevents the state, when determining the fitness and loyalty of such persons, from considering the organizations and persons with whom they associate.
12
If, under the procedure set up in the New York law, a person is found to be unfit and is disqualified from employment in the public school system because of membership in a listed organization, he is not thereby denied the right of free speech and assembly. His freedom of choice between membership in the organization and employment in the school system might be limited, but not his freedom of speech or assembly, except in the remote sense that limitation is inherent in every choice. Certainly such limitation is not one the state may not make in the exercise of its police power to protect the schools from pollution and thereby to defend its own existence.
13
It is next argued by appellants that the provision in § 3022 directing the Board of Regents to provide in rules and regulations that membership in any organization listed by the Board after notice and hearing, with provision for review in accordance with the statute, shall constitute prima facie evidence of disqualification, denies due process, because the fact found bears no relation to the fact presumed. In other words, from the fact found that the organization was one that advocated the overthrow of government by unlawful means and that the person employed or to be employed was a member of the organization and knew of its purpose,8 to presume that such member is disqualified for employment is so unreasonable as to be a denial of due process of law. We do not agree.
14
'The law of evidence is full of presumptions either of fact or law. The former are, of course, disputable, and the strength of any inference of one fact from proof of another depends upon the generality of the experience upon which it is founded. * * *
15
'Legislation providing that proof of one fact shall constitute prima facie evidence of the main fact in issue is but to enact a rule of evidence, and quite within the general power of government. Statutes, national and state, dealing with such methods of proof in both civil and criminal cases, abound, and the decisions upholding them are numerous.' Mobile, J. & K.C.R. Co. v. Turnipseed, 219 U.S. 35 at page 42, 31 S.Ct. 136, at page 137, 55 L.Ed. 78.
16
Membership in a listed organization found to be within the statute and known by the member to be within the statute is a legislative finding that the member by his membership supports the thing the organization stands for, namely, the overthrow of government by unlawful means. We cannot say that such a finding is contrary to fact or that 'generality of experience' points to a different conclusion. Disqualification follows therefore as a reasonable presumption from such membership and support. Nor is there here a problem of procedural due process. The presumption is not conclusive but arises only in a hearing where the person against whom it may arise has full opportunity to rebut it. The holding of the Court of Appeals below is significant in this regard: 'The statute also makes it clear that * * * proof of such membership 'shall constitute prima facie evidence of disqualification' for such employment. But, as was said in Potts v. Pardee, 220 N.Y. 431, 433, 116 N.E. 78, 79, 8 A.L.R. 785: 'The presumption growing out of a prima facie case * * * remains only so long as there is no substantial evidence to the contrary. When that is offered the presumption disappears, and, unless met by further proof, there is nothing to justify a finding based solely upon it.' Thus the phrase 'prima facie evidence of disqualification' as used in the statute, imports a hearing at which one who seeks appointment to or retention in a public school position shall be afforded an opportunity to present substantial evidence contrary to the presumption sanctioned by the prima facie evidence for which subdivision 2 of section 3022 makes provision. Once such contrary evidence has been received, however, the official who made the order of ineligibility has thereafter the burden of sustaining the validity of that order by a fair preponderance of the evidence. Civil Service Law, § 12—a, subd. (d). Should an order of ineligibility then issue, the party aggrieved thereby may avail himself of the provisions for review prescribed by the section of the statute last cited above. In that view there here arises no question of procedural due process.' Lederman v. Board of Education, 301 N.Y. 476, at page 494, 95 N.E.2d 806, at page 814.
17
Where, as here, the relation between the fact found and the presumption is clear and direct and is not conclusive, the requirements of due process are satisfied.
18
Without raising in the complaint or in the proceedings in the lower courts the question of the constitutionality of § 3021 of the Education Law of New York, appellants urge here for the first time that this section is unconstitutionally vague. The question is not before us. We will not pass upon the constitutionality of a state statute before the state courts have had an opportunity to do so. Asbury Hospital v. Cass County, 326 U.S. 207, 213—216, 66 S.Ct. 61, 64, 65, 90 L.Ed. 6; Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 460—462, 65 S.Ct. 1384, 1389, 1390, 89 L.Ed. 1725; Plymouth Coal Co. v. Com. of Pennsylvania, 232 U.S. 531, 546, 34 S.Ct. 359, 363, 58 L.Ed. 713.
19
It is also suggested that the use of the word 'subversive' is vague and indefinite. But the word is first used in § 1 of the Feinberg Law, which is the preamble to the Act, and not in a definitive part thereof. When used in subdivision 2 of § 3022, the word has a very definite meaning, namely, an organization that teaches and advocates the overthrow of government by force or violence.
20
We find no constitutional infirmity in § 12—a of the Civil Service Law of New York or in the Feinberg Law which implemented it, and the judgment is affirmed.
21
Affirmed.
22
Mr. Justice BLACK, dissenting.
23
While I fully agree with the dissent of Mr. Justice DOUGLAS, the importance of this holding prompts me to add these thoughts.
24
This is another of those rapidly multiplying legislative enactments which make it dangerous—this time for school teachers—to think or say anything except what a transient majority happen to approve at the moment. Basically these laws rest on the belief that government should supervise and limit the flow of ideas into the minds of men. The tendency of such governmental policy is to mould people into a common intellectual pattern. Quite a different governmental policy rests on the belief that government should leave the mind and spirit of man absolutely free. Such a governmental policy encourages varied intellectual outlooks in the belief that the best views will prevail. This policy of freedom is in my judgment embodied in the First Amendment and made applicable to the states by the Fourteenth. Because of this policy public officials cannot be constitutionally vested with powers to select the ideas people can think about, censor the public views they can express, or choose the persons or groups people can associate with. Public officials with such powers are not public servants; they are public masters.
25
I dissent from the Court's judgment sustaining this law which effectively penalizes school teachers for their thoughts and their associates.
26
Mr. Justice FRANKFURTER, dissenting.
27
We are asked to pass on a scheme to counteract what are currently called 'subversive' influences in the public school system of New York. The scheme is formulated partly in statutes and partly in administrative regulations, but all of it is still an unfinished blueprint. We are asked to adjudicate claims against its constitutionality before the scheme has been put into operation, before the limits that it imposes upon free inquiry and association, the scope of scrutiny that it sanctions, and the procedural safeguards that will be found to be implied for its enforcement have been authoritatively defined. I think we should adhere to the teaching of this Court's history to avoid constitutional adjudications on merely abstract or speculative issues and to base them on the concreteness afforded by an actual, present, defined controversy, appropriate for judicial judgment, between adversaries immediately affected by it. In accordance with the settled limits upon our jurisdiction I would dismiss this appeal.
28
An understanding of the statutory scheme and the action thus far taken under it is necessary to a proper consideration of the issues which for me control disposition of the case, namely, standing of the parties and ripeness of the constitutional question.
29
A New York enactment of 1949 precipitated this litigation. But that legislation is tied to prior statutes. By a law of 1917 'treasonable or seditious' utterances or acts barred employment in the public schools. New York Education Law, § 3021. In 1939 a further enactment disqualified from the civil service and the educational system anyone who advocates the overthrow of government by force, violence or any unlawful means, or publishes material advocating such overthrow or organizes or joins any society advocating such doctrine. New York Civil Service Law, § 12 a. This states with sufficient accuracy the provisions of this Law, which also included detailed provisions for the hearing and review of charges.
30
During the thirty-two years and ten years, respectively, that these laws have stood on the books, no proceedings, so far as appears, have been taken under them. In 1949 the Legislature passed a new act, familiarly known as the Feinberg Law, designed to reinforce the prior legislation. The Law begins with a legislative finding, based on 'common report' of widespread infiltration by 'members of subversive groups, and particularly of the communist party and certain of its affiliated organizations,' into the educational system of the State and the evils attendant upon that infiltration. It takes note of existing laws and exhorts the authorities to greater endeavor of enforcement. The State Board of Regents, in which are lodged extensive powers over New York's educational system, was charged by the Feinberg Law with these duties:
31
(1) to promulgate rules and regulations for the more stringent enforcement of existing law;
32
(2) to list 'after inquiry, and after such notice and hearing as may be appropriate' those organizations membership in which is proscribed by subsection (c) of § 12—a of the Civil Service law;
33
(3) to provide in its rules and regulations that membership in a listed organization shall be prima facie evidence of disqualification under § 12—a;
34
(4) to report specially and in detail to the legislature each year on measures taken for the enforcement of these laws.
35
Accordingly, the Board of Regents adopted Rules for ferreting out violations of § 3021 or § 12—a. An elaborate machinery was designed for annual reports on each employee with a view to discovering evidence of violations of these sections and to assuring appropriate action on such discovery. The Board also announced its intention to publish the required list of proscribed organizations and defined the significance of an employee's membership therein in proceedings for his dismissal. These Rules by the Board of Regents were published with an accompanying Memorandum by the Commissioner of Education. He is the administrative head of New York's school system and his Memorandum was for the guidance of school officials throughout the State. It warned of the danger of indiscriminate or careless action under the Feinberg Law and the Regents' Rules, and laid down this duty: 'The statutes and the Regents' rules make it clear that it is a primary duty of the school authorities in each school district to take positive action to eliminate from the school system any teacher in whose case there is evidence that he is guilty of subversive activity. School authorities are under obligation to proceed immediately and conclusively in every such case.'
36
The Rules and Memorandum appear in the record; we shall have occasion to refer later to their relevance to what was decided below. Our attention has also been called to an order of the Board of Education of the City of New York, the present appellee. This order further elaborates the part of the Regents' Rules dealing with reports on teachers. It is not clear whether this order has gone into effect. In any event it was not before the lower courts and is not in the record here.
37
It thus appears that we are asked to review a complicated statutory scheme prohibiting those who engage in the kind of speech or conduct that is proscribed from holding positions in the public school system. The scheme is aligned with a complex system of enforcement by administrative investigation, reporting and listing of proscribed organizations. All this must further be related to the general procedures under the New York law for hearing and reviewing charges of misconduct against educational employees, modified as those procedures may be by the Feinberg Law and the Regents' Rules.
38
This intricate machinery has not yet been set in motion. Enforcement has been in abeyance since the present suit, among others, was brought to enjoin the Board of Education from taking steps or spending funds under the statutes and Rules on the theory that these transgressed various limitations which the United States Constitution places on the power of the States. The case comes here on the bare bones of the Feinberg Law only partly given flesh by the Regents' Rules. It was decided wholly on pleadings: a complaint, identifying the plaintiffs and their interests, setting out the offending statutes and Rules, and concluding in a more or less argumentative fashion that these provisions violate numerous constitutional rights of the various plaintiffs; an answer, denying that the impact of the statute is unconstitutional and that the plaintiffs have any interest to support the suit. On these pleadings summary judgment in favor of some of the plaintiffs was granted by the Supreme Court in Kings County, Lederman v. Board of Education, 196 Misc. 873, 95 N.Y.S.2d 114; this was reversed by the Appellate Division for the Second Department with direction that the complaint be dismissed, 276 App.Div. 527, 96 N.Y.S.2d 466, and the Court of Appeals affirmed the Appellate Division. 301 N.Y. 476, 95 N.E.2d 806. These pleadings and the opinions below are the basis on which we are asked to decide this case.
39
About forty plaintiffs brought the action initially; the trial court dismissed as to all but eight. 196 Misc. at page 877, 95 N.Y.S.2d 114. The others were found without standing to sue under New York law. The eight who are here as appellants alleged that they were municipal taxpayers and were empowered, by virtue of N.Y.Gen.Municipal Law § 51, McK.Consol.Laws, c. 24, to bring suit against municipal agencies to enjoin waste of funds. New York is free to determine how the views of its courts on matters of constitutionality are to be invoked. But its action cannot of course confer jurisdiction on this Court, limited as that is by the settled construction of Article III of the Constitution. We cannot entertain, as we again recognize this very day, a constitutional claim at the instance of one whose interest has no material significance and is undifferentiated from the mass of his fellow citizens. Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394. This is not a 'pocketbook action.' As taxpayers these plaintiffs cannot possibly be affected one way or the other by any disposition of this case, and they make no such claim. It may well be that the authorities will, if left free, divert funds and effort from other purposes for the enforcement of the provisions under review, though how much leads to the merest conjecture. But the total expenditure, certainly the new expenditure, necessary to implement the Act and Rules may well be de minimis. The plaintiffs at any rate have not attempted to show that any such expenditure would come from funds to which their taxes contribute. In short, they have neither alleged nor shown that our decision on the issues they tender would have the slightest effect on their tax bills or even on the aggregate bill of all the City's taxpayers whom they claim to represent. The high improbability of being able to make such a demonstration, in the circumstances of this case, does not dispense with the requirements for our jurisdiction. If the incidence of taxation in a city like New York bears no relation to the factors here under consideration, that is precisely why these taxpayers have no claim on our jurisdiction.
40
This ends the matter for plaintiffs Krieger and Newman. But six of the plaintiffs advanced grounds other than that of being taxpayers in bringing this action. Two are parents of children in New York City schools. Four are teachers in these schools. On the basis of the record before us these claims, too, are insufficient, in view of our controlling adjudications, to support the jurisdiction of this Court.
41
The trial court found the interests of the plaintiffs as parents inconsequential. Lederman v. Board of Education, 196 Misc., at page 875, 95 N.Y.S.2d 114. I agree. Parents may dislike to have children educated in a school system where teachers feel restrained by unconstitutional limitations on their freedom. But it is like catching butterflies without a net to try to find a legal interest, indispensable for our jurisdiction, in a parent's desire to have his child educated in schools free from such restrictions. The hurt to parents' sensibilities is too tenuous or the inroad upon rightful claims to public education too argumentative to serve as the earthy stuff required for a legal right judicially enforceable. The claim does not approach in immediacy or directness or solidity that which our whole process of constitutional adjudication has deemed a necessary condition to the Court's settlement of constitutional issues.
42
An apt contrast is provided by People of State of Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 648, where a parent did present an individualized claim of his own that was direct and palpable. There the parent alleged that Illinois imposed restrictions on the child's free exercise of faith and thereby on the parent's. The basis of jurisdiction in the McCollum case was not at all a parental right to challenge in the courts—or at least in this Court—educational provisions in general. The closely defined encroachment of the particular arrangement on a constitutionally protected right of the child, and of the parent's right in the child, furnished the basis for our review. The Feinberg Law puts no limits on any definable legal interest of the child or of its parents.
43
This leaves only the teachers, Adler, Spencer, and George and Mark Friedlander. The question whether their interest as teachers was sufficient to give them standing to sue was thought by the trial court to be conclusively settled by our decision in United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754. I see no escape from the controlling relevance of the Mitchell case. There individual government employees sought to enjoin enforcement of the provisions of the Hatch Act forbidding government employees to take active part in politics. The complaint contained detailed recitals of the desire, intent and specific steps short of violation on the part of plaintiffs to engage in the prohibited activities. See 330 U.S. at pages 87—88, note 18, 67 S.Ct. 563. There as here the law was attacked as violating constitutional guaranties of freedom of speech. We found jurisdiction wanting to decide the issue except as to one plaintiff whose conduct had already violated the applicable standards.
44
The allegations in the present action fall short of those found insufficient in the Mitchell case. These teachers do not allege that they have engaged in proscribed conduct or that they have any intention to do so. They do not suggest that they have been, or are, deterred from supporting causes or from joining organizations for fear of the Feinberg Law's interdict, except to say generally that the system complained of will have this effect on teachers as a group. They do not assert that they are threatened with action under the law, or that steps are imminent whereby they would incur the hazard of punishment for conduct innocent at the time, or under standards too vague to satisfy due process of law. They merely allege that the statutes and Rules permit such action against some teachers. Since we rightly refused in the Mitchell case to hear government employees whose conduct was much more intimately affected by the law there attacked than are the claims of plaintiffs here, this suit is wanting in the necessary basis for our review.
45
This case proves anew the wisdom of rigorous adherence to the prerequisites for pronouncement by this Court on matters of constitutional law. The absence in these plaintiffs of the immediacy and solidity of interest necessary to support jurisdiction is reflected in the atmosphere of abstraction and ambiguity in which the constitutional issues are presented. The broad, generalized claims urged at the bar touch the deepest interests of a democratic society: its right to self-preservation and ample scope for the individual's freedom, especially the teacher's freedom of thought, inquiry and expression. No problem of a free society is probably more difficult than the reconciliation or accommodation of these too often conflicting interests. The judicial role in this process of accommodation is necessarily very limited and must be carefully circumscribed. To that end the Court, in its long history, has developed 'a series of rules' carefully formulated by Mr. Justice Brandeis, 'under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision.' Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346, 56 S.Ct. 466, 482, 80 L.Ed. 688.
46
We have emphasized that, as to the kind of constitutional questions raised by the Feinberg Law, 'the distinction is one of degree, and it is for this reason that the effect of the statute in proscribing beliefs—like its effect in restraining speech or freedom of association—must be carefully weighed by the courts in determining whether the balance struck by (the State) comports with the dictates of the Constitution.' American Communications Ass'n v. Douds, 339 U.S. 382, 409, 70 S.Ct. 674, 689, 94 L.Ed. 925. But as the case comes to us we can have no guide other than our own notions—however uncritically extra-judicial—of the real bearing of the New York arrangement on the freedom of thought and activity, and especially on the feeling of such freedom, which are, as I suppose no one would deny, part of the necessary professional equipment of teachers in a free society. The scheme for protecting the school system from being made the instrument of purposes other than a school system should serve in a free society certainly a concern within the constitutional powers of a State bristles with ambiguities which must enter into any constitutional decision we may make. Of these only a few have been considered by the courts below. We are told that an organization cannot be listed by the Regents except after hearing. Lederman v. Board of Education, 301 N.Y. at pages 488, 493, 494, 95 N.E.2d 806. From this it may be assumed that the hearing contemplated is that found wanting by some members of this Court in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817. The effect of the requirement that membership in a listed organization be prima facie evidence of disqualification in a dismissal proceeding is enlarged upon. Lederman v. Board of Education, 301 N.Y. at page 494, 95 N.E.2d 806. And the Court of Appeals indicates that only one who 'knowingly holds membership in an organization named upon any listing' is subjected to the operation of that rebuttable presumption. 301 N.Y. at page 494, 95 N.E.2d at page 814.
47
These are the only islands of clarity. Otherwise we are at sea. We are not told the meaning to be attributed to the words 'treasonable or seditious' in § 3021 of the Education Law, though that is one of the two sections of preexisting law which the elaborate apparatus of the Feinberg Law is designed to enforce. In light of the experience under the Sedition Act of 1798, 1 Stat. 596, 'seditious' can hardly be deemed a self-defining term or a word of art. See Miller, Crisis in Freedom, 136—137. Nor can we turn to practical application or judicial construction for sufficient particularity of the meaning to be attributed to the range of activity proscribed by § 12—a. Concern over the latitude afforded by such phrases as 'the overthrow of government by * * * any unlawful means' when positions of trust or public employment are conditioned upon disbelief in such an objective cannot be deemed without warrant. See American Communications Ass'n, v. Douds, 339 U.S. 382, 415, 435, 70 S.Ct. 674, 692, 702, 94 L.Ed. 925; Garner v. Board of Public Works of Los Angeles, 341 U.S. 716, 724, 71 S.Ct. 909, 914, 95 L.Ed. 1317. In those cases the Court had ground for limiting the reach of a dubious formula. No such alternative is available here.
48
These gaps in our understanding of the precise scope of the statutory provisions are deepened by equal uncertainties in the implementing Rules. Indeed, according to the Appellate Division these Rules are not in the case. Lederman v. Board of Education, 276 App.Div. at page 531, 96 N.Y.S.2d 466. And the Court of Appeals was silent on the point. Therefore we are without enlightenment, for example, on the nature of the reporting system described by the Rules. This may be a vital matter, affecting not the special circumstances of a particular case but coloring the whole scheme. For it may well be of constitutional significance whether the reporting system contemplates merely the notation as to each teacher that no evidence of disqualification has turned up, if such be the case, or whether it demands systematic and continuous surveillance and investigation of evidence. The difference cannot be meaningless, it may even be decisive, if our function is to balance the restrictions on freedom of utterance and of association against the evil to be suppressed. Again, the Rules seem to indicate that past activities of the proscribed organizations or past membership in listed organizations may be enough to bar new applicants for employment. But we do not know, nor can we determine it. This, too, may make a difference. See Garner v. Board of Public Works of Los Angeles, supra, 341 U.S. at page 729, 71 S.Ct. 917 (Mr. Justice Burton dissenting in part). We do not know, nor can we ascertain, the effect of the presumption of continuing membership in proscribed organizations that is drawn from evidence of past membership 'in the absence of a showing that such membership has been terminated in good faith.' We are uninformed of the effect in law of the Commissioner's memorandum, and there is no basis on which to appraise its effect in practice. As for the order of the Board of Education of the City of New York, it is not even formally in the case. In the face of such uncertainties this Court has in the past found jurisdiction wanting, howsoever much the litigants were eager for constitutional pronouncements. Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 65 S.Ct. 1384, 89 L.Ed. 1725; Congress of Industrial Organizations v. McAdory, 325 U.S. 472, 65 S.Ct. 1395, 89 L.Ed. 1741; Rescue Army v. Municipal Court, 331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 1666; Parker v. County of Los Angeles, 338 U.S. 327, 70 S.Ct. 161, 94 L.Ed. 144.
49
This statement of reasons for declining jurisdiction sounds technical, perhaps, but the principles concerned are not so. Rare departures from them are regrettable chapters in the Court's history, and in wellknown instances they caused great public misfortune.
50
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.
51
I have not been able to accept the recent doctrine that a citizen who enters the public service can be forced to sacrifice his civil rights.* I cannot for example find in our constitutional scheme the power of a state to place its employees in the category of second-class citizens by denying them freedom of thought and expression. The Constitution guarantees freedom of thought and expression to everyone in our society. All are entitled to it; and none needs it more than the teacher.
52
The public school is in most respects the cradle of our democracy. The increasing role of the public school is seized upon by proponents of the type of legislation represented by New York's Feinberg law as proof of the importance and need for keeping the school free of 'subversive influences.' But that is to misconceive the effect of this type of legislation. Indeed the impact of this kind of censorship on the public school system illustrates the high purpose of the First Amendment in freeing speech and thought from censorship.
53
The present law proceeds on a principle repugnant to our society—guilt by association. A teacher is disqualified because of her membership in an organization found to be 'subversive.' The finding as to the 'subversive' character of the organization is made in a proceeding to which the teacher is not a party and in which it is not clear that she may even be heard. To be sure, she may have a hearing when charges of disloyalty are leveled against her. But in that hearing the finding as to the 'subversive' character of the organization apparently may not be reopened in order to allow her to show the truth of the matter. The irrebuttable charge that the organization is 'subversive' therefore hangs as an ominous cloud over her own hearing. The mere fact of membership in the organization raises a prima facie case of her own guilt. She may, it is said, show her innocence. But innocence in this case turns on knowledge; and when the witch hunt is on, one who must rely on ignorance leans on a feeble reed.
54
The very threat of such a procedure is certain to raise havoc with academic freedom. Youthful indiscretions, mistaken causes, misguided enthusiasms—all long forgotten—become the ghosts of a harrowing present. Any organization committed to a liberal cause, any group organized to revolt against an hysterical trend, any committee launched to sponsor an unpopular program becomes suspect. These are the organizations into which Communists often infiltrate. Their presence infects the whole, even though the project was not conceived in sin. A teacher caught in that mesh is almost certain to stand condemned. Fearing condemnation, she will tend to shrink from any association that stirs controversy. In that manner freedom of expression will be stifled.
55
But that is only part of it. Once a teacher's connection with a listed organization is shown, her views become subject to scrutiny to determine whether her membership in the organization is innocent or, if she was formerly a member, whether she has bona fide abandoned her membership.
56
The law inevitably turns the school system into a spying project. Regular loyalty reports on the teachers must be made out. The principals become detectives; the students, the parents, the community become informers. Ears are cocked for tell-tale signs of disloyalty. The prejudices of the community come into play in searching out the disloyal. This is not the usual type of supervision which checks a teacher's competency; it is a system which searches for hidden meanings in a teacher's utterances.
57
What was the significance of the reference of the art teacher to socialism? Why was the history teacher so openly hostile to Franco Spain? Who heard overtones of revolution in the English teacher's discussion of the Grapes of Wrath? What was behind the praise of Soviet progress in metallurgy in the chemistry class? Was it not 'subversive' for the teacher to cast doubt on the wisdom of the venture in Korea?
58
What happens under this law is typical of what happens in a police state. Teachers are under constant surveillance; their pasts are combed for signs of disloyalty; their utterances are watched for clues to dangerous thoughts. A pall is cast over the classrooms. There can be no real academic freedom in that environment. Where suspicion fills the air and holds scholars in line for fear of their jobs, there can be no exercise of the free intellect. Supineness and dogmatism take the place of inquiry. A 'party line'—as dangerous as the 'party line' of the Communists lays hold. It is the 'party line' of the orthodox view, of the conventional thought, of the accepted approach. A problem can no longer be pursued with impunity to its edges. Fear stalks the classroom. The teacher is no longer a stimulant to adventurous thinking; she becomes instead a pipe line for safe and sound information. A deadening dogma takes the place of free inquiry. Instruction tends to become sterile; pursuit of knowledge is discouraged; discussion often leaves off where it should begin.
59
This, I think, is what happens when a censor looks over a teacher's shoulder. This system of spying and surveillance with its accompanying reports and trials cannot go hand in hand with academic freedom. It produces standardized thought, not the pursuit of truth. Yet it was the pursuit of truth which the First Amendment was designed to protect. A system which directly or inevitably has that effect is alien to our system and should be struck down. Its survival is a real threat to our way of life. We need be bold and adventuresome in our thinking to survive. A school system producing students trained as robots threatens to rob a generation of the versatility that has been perhaps our greatest distinction. The Framers knew the danger of dogmatism; they also knew the strength that comes when the mind is free, when ideas may be pursued wherever they lead. We forget these teachings of the First Amendment when we sustain this law.
60
Of course the school systems of the country need not become cells for Communist activities; and the classrooms need not become forums for propagandizing the Marxist creed. But the guilt of the teacher should turn on overt acts. So long as she is a law-abiding citizen, so long as her performance within the public school system meets professional standards, her private life, her political philosophy, her social creed should not be the cause of reprisals against her.
1
N.Y. Laws 1939, c. 547, as amended N.Y. Laws 1940, c. 564.
2
N.Y. Laws 1949, c. 360.
3
'§ 12—a. Ineligibility
'No person shall be appointed to any office or position in the service of the state or of any civil division or city thereof, nor shall any person presently employed in any such office or position be continued in such employment, nor shall any person be employed in the public service as superintendents, principals or teachers in a public school or academy or in a state normal school or college, or any other state educational institution who: (a) By word of mouth or writing wilfully and deliberately advocates, advises or teaches the doctrine that the government of the United States or of any state or of any political subdivision thereof should be overthrown or overturned by force, violence or any unlawful means; or
'(b) Prints, publishers, edits, issues or sells, any book, paper, document or written or printed matter in any form containing or advocating, advising or teaching the doctrine that the government of the United States or of any state or of any political subdivision thereof should be overthrown by force, violence or any unlawful means, and who advocates, advises, teaches, or embraces the duty, necessity or propriety of adopting the doctrine contained therein;
'(c) Organizes or helps to organize or becomes a member of any society or group of persons which teaches or advocates that the government of the United States or of any state or of any political subdivision thereof shall be overthrown by force or violence, or by any unlawful means;
'(d) A person dismissed or declared ineligible may within four months of such dismissal or declaration of ineligibility be entitled to petition for an order to show cause signed by a justice of the supreme court, why a hearing on such charges should not be had. Until the final judgment on said hearing is entered, the order to show cause shall stay the effect of any order of dismissal or ineligibility based on the provisions of this section. The hearing shall consist of the taking of testimony in open court with opportunity for cross-examination. The burden of sustaining the validity of the order of dismissal or ineligibility by a fair preponderance of the credible evidence shall be upon the person making such dismissal or order of ineligibility.'
4
'§ 3022. Elimination of subversive persons from the public school system
'1. The board of regents shall adopt, promulgate, and enforce rules and regulations for the disqualification or removal of superintendents of schools, teachers or employees in the public schools in any city or school district of the state who violate the provisions of section three thousand twenty-one of this article or who are ineligible for appointment to or retention in any office or position in such public schools on any of the grounds set forth in section twelve—a of the civil service law and shall provide therein appropriate methods and procedure for the enforcement of such sections of this article and the civil service law.
'2. The board of regents shall, after inquiry, and after such notice and hearing as may be appropriate, make a listing of organizations which it finds to be subversive in that they advocate, advise, teach or embrace the doctrine that the government of the United States or of any state or of any political subdivision thereof shall be overthrown or overturned by force, violence or any unlawful means, or that they advocate, advise, teach or embrace the duty, necessity or propriety of adopting any such doctrine, as set forth in section twelve—a of the civil service law. Such listings may be amended and revised from time to time. The board, in making such inquiry, may utilize any similar listings or designations promulgated by any federal agency or authority authorized by federal law, regulation or executive order, and for the purposes of such inquiry, the board may request and receive from such federal agencies or authorities any supporting material or evidence that may be made available to it. The board of regents shall provide in the rules and regulations required by subdivision one hereof that membership in any such organization included in such listing made by it shall constitute prima facie evidence of disqualification for appointment to or retention in any office or position in the public schools of the state.'
5
'§ 3021. Removal of superintendents, teachers and employees for treasonable or seditious acts or utterances
'A person employed as superintendent of schools, teacher or employee in the public schools, in any city or school district of the state, shall be removed from such position for the utterance of any treasonable or seditious word or words or the doing of any treasonable or seditious act or acts while holding such position.'
6
'§ 254. Disqualification or removal of superintendents, teachers and other employes.
* * * * * *
'2. List of subversive organizations to be issued. Pursuant to chapter 360 of the Laws of 1949, the Board of Regents will issue a list, which may be amended and revised from time to time, of organizations which the Board finds to be subversive in that they advocate, advise, teach or embrace the doctrine that the Government of the United States, or of any state or of any political subdivision thereof, shall be overthrown or overturned by force, violence or any unlawful means, or that they advocate, advise, teach or embrace the duty, necessity or propriety of adopting any such doctrine, as set forth in section 12—a of the Civil Service Law. Evidence of membership in any organization so listed on or after the tenth day subsequent to the date of official promulgation of such list shall constitute prima facie evidence of disqualification for appointment to or retention of any office or position in the school system. Evidence of membership in such an organization prior to said day shall be presumptive evidence that membership has continued, in the absence of a showing that such membership has been terminated in good faith.' Official Compilation of Codes, Rules and Regulations of the State of New York (Fifth Supp.), Vol. 1, pp. 205—206.
7
The Court of Appeals construed the statute in conjunction with § 12—a subd. (d), supra, n. 3. The Rules of the Board of Regents provided: 'In all cases all rights to a fair trial, representation by counsel and appeal or count review as provided by statute or the Constitution shall be scrupulously observed.' Section 254, 1(e), Official Compilation of Codes, Rules and Regulations of the State of New York (Fifth Supp.), Vol. 1, p. 206.
8
In the proceedings below, both the Appellate Division of the Supreme Court and the Court of Appeals construed the statute to require such knowledge. Lederman v. Board of Education, 276 App.Div. 527, 530, 96 N.Y.S.2d 466; Thompson v. Wallin, 301 N.Y. 476, 494, 95 N.E.2d 806, 814.
*
United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754; Garner v. Board of Public Works of Los Angeles, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317.
| 23
|
342 U.S. 429
72 S.Ct. 394
96 L.Ed. 475
DOREMUS et al.v.BOARD OF EDUCATION OF BOROUGH OF HAWTHORNE et al.
No. 9.
Argued Jan. 31, 1952.
Decided March 3, 1952.
Mr. Heyman Zimel, Paterson, N.J., for appellants.
Messrs. Henry F. Schenk, Theodore D. Parsons, Trenton, N.J., for appellee.
Mr. Justice JACKSON delivered the opinion of the Court.
1
This action for a declaratory judgment on a question of federal constitutional law was prosecuted in the state courts of New Jersey. It sought to declare invalid a statute of that State which provides for the reading, without comment, of five verses of the Old Testament at the opening of each public-school day. N.J.Rev.Stat., 1937, 18:14—77, N.J.S.A. No issue was raised under the State Constitution, but the Act was claimed to violate the clause of the First Amendment to the Federal Constitution prohibiting establishment of religion.
2
No trial was held and we have no findings of fact, but the trial court denied relief on the merits on the basis of the pleadings and a pretrial conference, of which the record contains meager notes. The Supreme Court of New Jersey, on appeal, rendered its opinion that the Act does not violate the Federal Constitution, in spite of jurisdictional doubts which it pointed out but condoned as follows: 'No one is before us asserting that his religious practices have been interfered with or that his right to worship in accordance with the dictates of his conscience has been suppressed. No religious sect is a party to the cause. No representative of, or spokesman for, a religious body has attacked the statute here or below. One of the plaintiffs is 'a citizen and taxpayer'; the only interest he asserts is just that and in those words, set forth in the complaint and not followed by specification or proof. It is conceded that he is a citizen and a taxpayer, but it is not charged and it is neither conceded nor proved that the brief interruption in the day's schoolding caused by compliance with the statute adds cost to the school expenses or varies by more than an incomputable scintilla the economy of the day's work. The other plaintiff, in addition to being a citizen and a taxpayer, has a daughter, aged seventeen, who is a student of the school. Those facts are asserted, but, as in the case of the co-plaintiff, no violated rights are urged. It is not charged that the practice required by the statute conflicts with the convictions of either mother or daughter. Apparently the sole purpose and the only function of plaintiffs is that they shall assume the role of actors so that there may be a suit which will invoke a court ruling upon the constitutionality of the statute. Respondents urge that under the circumstances the question is moot as to the plaintiffs-appellants and that our declaratory judgment statute may not properly be used in justification of such a proceeding. Cf. New Jersey Turnpike Authority v. Parsons, 3 N.J. 235, 69 A.2d 875; Commonwealth of Massachusetts v. Mellon (1923), 262 U.S. 447, at page 488, 43 S.Ct. 597, 67 L.Ed. 1078, at page 1085. The point has substance but we have nevertheless concluded to dispose of the appeal on its merits.' 1950, 5 N.J. 435, 439, 75 A.2d 880, 881—882.
3
Upon appeal to this Court, we considered appellants' jurisdictional statement but, instead of nothing probable jurisdiction, ordered that 'Further consideration of the question of the jurisdiction of this Court in this case and of the motion to dismiss or affirm is postponed to the hearing of the case on the merits.' On further study, the doubts thus indicated ripen into a conviction that we should dismiss the appeal without reaching the constitutional question.
4
The view of the facts taken by the court below, though it is entitled to respect, does not bind us and we may make an independent examination of the record. Doing so, we find nothing more substantial in support of jurisdiction than did the court below. Appellants, apparently seeking to bring themselves within Illinois ex rel. McCollum v. Board of Education of School Dist. No. 71, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 648, assert a challenge to the Act in two capacities—one as parent of a child subject to it, and both as taxpayers burdened because of its requirements.
5
In support of the parent-and-school-child relationship, the complaint alleged that appellant Klein was parent of a seventeen-year-old pupil in Hawthorne High School, where Bible reading was practiced pursuant to the Act. That is all. There is no assertion that she was injured or even offended thereby or that she was compelled to accept, approve or confess agreement with any dogma or creed or even to listen when the Scriptures were read. On the contrary, there was a pretrial stipulation that any student, at his own or his parents' request, could be excused during Bible reading and that in this case no such excuse was asked. However, it was agreed upon argument here that this child had graduated from the public schools before this appeal was taken to this Court. Obviously no decision we could render now would protect any rights she may once have had, and this Court does not sit to decide arguments after events have put them to rest. United States v. Alaska Steamship Co., 253 U.S. 113, 116, 40 S.Ct. 448, 449, 64 L.Ed. 808.
6
The complaint is similarly niggardly of facts to support a taxpayer's grievance. Doremus is alleged to be a citizen and taxpayer of the State of New Jersey and of the Township of Rutherford, but any relation of that Township to the litigation is not disclosed to one not familiar with local geography. Klein is set out as a citizen and taxpayer of the Borough of Hawthorne in the State of New Jersey, and it is alleged that Hawthorne has a high school supported by public funds. In this school the Bible is read, according to statute. There is no allegation that this activity is supported by any separate tax or paid for from any particular appropriation or that it adds any sum whatever to the cost of conducting the school. No information is given as to what kind of taxes are paid by appellants and there is no averment that the Bible reading increases any tax they do pay or that as taxpayers they are, will, or possibly can be out of pocket because of it.
7
The State raised the defense that appellants showed no standing to maintain the action but, on pretrial conference, perhaps with premonitions of success, waived it and acquiesced in a determination of the federal constitutional question. Whether such facts amount to a justifiable case or controversy is decisive of our jurisdiction.
8
This Court has held that the interests of a taxpayer in the moneys of the federal treasury are too indeterminable, remote, uncertain and indirect to furnish a basis for an appeal to the preventive powers of the Court over their manner of expenditure. Alabama Power Co. v. Ickes, 302 U.S. 464, 478—479, 58 S.Ct. 300, 303, 82 L.Ed. 374; Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, 486 et seq., 43 S.Ct. 597, 600, 67 L.Ed. 1078. The latter case recognized, however, that 'The interest of a taxpayer of a municipality in the application of its moneys is direct and immediate and the remedy by injunction to prevent their misuse is not inappropriate.' 262 U.S. at page 486, 43 S.Ct. at page 601. Indeed, a number of states provide for it by statute or decisional law and such causes have been entertained in federal courts. Crampton v. Zabriskie, 101 U.S. 601, 609, 25 L.Ed. 1070. See Commonwealth of Massachusetts v. Mellon, supra, 262 U.S. at page 486, 43 S.Ct. at page 600. Without disparaging the availability of the remedy by taxpayer's action to restrain unconstitutional acts which result in direct pecuniary injury, we reiterate what the Court said of a federal statute as equally true when a state Act is assailed: 'The party who invokes the power must be able to show, not only that the statute is invalid, but that he has sustained or is immediately in danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers in come indefinite way in common with people generally.' Commonwealth of Massachusetts v. Mellon, supra, 262 U.S. at page 488, 43 S.Ct. at page 601.
9
It is true that this Court found a justiciable controversy in Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711. But Everson showed a measurable appropriation or disbursement of school-district funds occasioned solely by the activities complained of. This complaint does not.
10
We do not undertake to say that a state court may not render an opinion on a federal constitutional question even under such circumstances that it can be regarded only as advisory. But, because our own jurisdiction is cast in terms of 'case or controversy,' we cannot accept as the basis for review, nor as the basis for conclusive disposition of an issue of federal law without review, any procedure which does not constitute such.
11
The taxpayer's action can meet this test, but only when it is a good-faith pocketbook action. It is apparent that the grievance which it is sought to litigate here is not a direct dollars-and-cents injury but is a religious difference. If appellants established the requisite special injury necessary to a taxpayer's case or controversy, it would not matter that their dominant inducement to action was more religious than mercenary. It is not a question of motivation but of possession of the requisite financial interest that is, or is threatened to be, injured by the unconstitutional conduct. We find no such direct and particular financial interest here. If the Act may give rise to a legal case or controversy on some behalf, the appellants cannot obtain a decision from this Court by a feigned issue of taxation.
12
The motion to dismiss the appeal is granted.
13
Mr. Justice DOUGLAS, with whom Mr. Justice REED and Mr. Justice BURTON concur, dissenting.
14
I think this case deserves a decision on the merits. There is no group more interested in the operation and management of the public schools than the taxpayers who support them and the parents whose children attend them. Certainly a suit by all the taxpayers to enjoin a practice authorized by the school board would be a suit by vital parties in interest. They would not be able to show, any more than the two present taxpayers have done, that the reading of the Bible adds to the taxes they pay. But if they were right in their contentions on the merits, they would establish that their public schools were being deflected from the educational program for which the taxes were raised. That seems to me to be an adequate interest for the maintenance of this suit by all the taxpayers. If all can do it, there is no apparent reason why less than all may not, the interest being the same. In the present case the issues are not feigned; the suit is not collusive; the mismanagement of the school system that is alleged is clear and plain.
15
If this were a suit to enjoin a federal law, it could not be maintained by reason of Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, 486, 43 S.Ct. 597, 600, 67 L.Ed. 1078. But New Jersey can fashion her own rules governing the institution of suits in her courts. If she wants to give these taxpayers the status to sue (by analogy to the right of shareholders to enjoin ultra vires acts of their corporation) I see nothing in the Constitution to prevent it. And where the clash of interests is as real and as strong as it is here, it is odd indeed to hold there is no case or controversy within the meaning of art. III, § 2 of the Constitution.
| 89
|
342 U.S. 437
72 S.Ct. 413
96 L.Ed. 485
PERKINSv.BENGUET CONSOLIDATED MINING CO. et al.
No. 85.
Argued Nov. 27, 28, 1951.
Decided March 3, 1952.
Rehearing Denied March 31, 1952.
See 343 U.S. 917, 72 S.Ct. 645.
Mr. Robert N. Gorman, Cincinnati, Ohio, for petitioner.
Mr. Lucien H. Mercier, Washington, D.C., for respondent.
Mr. Justice BURTON delivered the opinion of the Court.
1
This case calls for an answer to the question whether the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States precludes Ohio from subjecting a foreign corporation to the jurisdiction of its courts in this action in personam. The corporation has been carrying on in Ohio a continuous and systematic, but limited, part of its general business. Its president, while engaged in doing such business in Ohio, has been served with summons in this proceeding. The cause of action sued upon did not arise in Ohio and does not relate to the corporation's activities there. For the reasons hereafter stated, we hold that the Fourteenth Amendment leaves Ohio free to take or decline jurisdiction over the corporation.
2
After extended litigation elsewhere1 petitioner, Idonah Slade Perkins, a nonresident of Ohio, filed two actions in personam in the Court of Common Pleas of Clermont County, Ohio, against the several respondents. Among those sued is the Benguet Consolidated Mining Company, here called the mining company. It is styled a 'sociedad anonima' under the laws of the Philippine Islands, where it owns and has operated profitable gold and silver mines. In one action petitioner seeks approximately $68,400 in dividends claimed to be due her as a stockholder. In the other she claims $2,500,000 damages largely because of the company's failure to issue to her certificates for 120,000 shares of its stock.
3
In each case the trial court sustained a motion to quash the service of summons on the mining company. Ohio Com.Pl., 99 N.E.2d 515. The Court of Appeals of Ohio affirmed that decision, 88 Ohio App. 118, 95 N.E.2d 5, as did the Supreme Court of Ohio, 155 Ohio St. 116, 98 N.E.2d 33. The cases were consolidated and we granted certiorari in order to pass upon the conclusion voiced within the court below that federal due process required the result there reached. 342 U.S. 808, 72 S.Ct. 33, 96 L.Ed. —-.
4
We start with the holding of the Supreme Court of Ohio, not contested here, that, under Ohio law, the mining company is to be treated as a foreign corporation.2 Actual notice of the proceeding was given to the corporation in the instant case through regular service of summons upon its president while he was in Ohio acting in that capacity. Accordingly, there can be no jurisdictional objection based upon a lack of notice to a responsible representative of the corporation.
5
The answer to the question of whether the state courts of Ohio are open to a proceeding in personam, against an amply notified foreign corporation, to enforce a cause of action not arising in Ohio and not related to the business or activities of the corporation in that State rests entirely upon the law of Ohio, unless the Due Process Clause of the Fourteenth Amendment compels a decision either way.
6
The suggestion that federal due process compels the State to open its courts to such a case has no substance.
7
'Provisions for making foreign corporations subject to service in the state is a matter of legislative discretion, and a failure to provide for such service is not a denial of due process. Still less is it incumbent upon a state in furnishing such process to make the jurisdiction over the foreign corporation wide enough to include the adjudication of transitory actions not arising in the state.' Missouri P.R. Co. v. Clarendon Co., 257 U.S. 533, 535, 42 S.Ct. 210, 211, 66 L.Ed. 354.
8
Also without merit is the argument that merely because Ohio permits a complainant to maintain a proceeding in personam in its courts against a properly served nonresident natural person to enforce a cause of action which does not arise out of anything done in Ohio, therefore, the Constitution of the United States compels Ohio to provide like relief against a foreign corporation.
9
A more serious question is presented by the claim that the Due Process Clause of the Fourteenth Amendment prohibits Ohio from granting such relief against a foreign corporation. The syllabus in the report of the case below, while denying the relief sought, does not indicate whether the Supreme Court of Ohio rested its decision on Ohio law or on the Fourteenth Amendment. The first paragraph of that syllabus is as follows:
10
'1. The doing of business in this state by a foreign corporation, which has not appointed a statutory agent upon whom service of process against the corporation can be made in this state or otherwise consented to service of summons upon it in actions brought in this state, will not make the corporation subject to service of summons in an action in personam brought in the courts of this state to enforce a cause of action not arising in this state and in no way related to the business or activities of the corporation in this state.' 155 Ohio St. 116, 117, 98 N.E.2d 33, 34.
11
If the above statement stood alone, it might mean that the decision rested solely upon the law of Ohio. In support of that possibility we are told that, under the rules and practice of the Supreme Court of Ohio, only the syllabus necessarily carries the approval of that court.3 As we understand the Ohio practice, the syllabus of its Supreme Court constitutes the official opinion of that court but it must be read in the light of the facts and issues of the case.
12
The only opinion accompanying the syllabus of the court below places the concurrence of its author unequivocally upon the ground that the Due Process Clause of the Fourteenth Amendment prohibits the Ohio courts from exercising jurisdiction over the respondent corporation in this proceeding.4 That opinion is an official part of the report of the case. The report, however, does not disclose to what extent, if any, the other members of the court may have shared the view expressed in that opinion. Accordingly, for us to allow the judgment to stand as it is would risk an affirmance of a decision which might have been decided differently if the court below had felt free, under our decisions, to do so.
13
The cases primarily relied on by the author of the opinion accompanying the syllabus below are Old Wayne Life Ass'n v. McDonough, 204 U.S. 8, 27 S.Ct. 236, 51 L.Ed. 345, and Simon v. Southern R. Co., 236 U.S. 115, 35 S.Ct. 255, 59 L.Ed. 492. Unlike the case at bar, no actual notice of the proceedings was received in those cases by a responsible representative of the foreign corporation. In each case, the public official who was served with process in an attempt to bind the foreign corporation was held to lack the necessary authority to accept service so as to bind it in a proceeding to enforce a cause of action arising outside of the state of the forum. See 204 U.S. at pages 22—23, 27 S.Ct. at pages 240—241, and 236 U.S. at page 130, 35 S.Ct. at page 260. The necessary result was a finding of inadequate service in each case and a conclusion that the foreign corporation was not bound by it. The same would be true today in a like proceeding where the only service had and the only notice given was that directed to a public official who had no authority, by statute or otherwise, to accept it in that kind of a proceeding. At the time of rendering the above decisions this Court was aided, in reaching its conclusion as to the limited scope of the statutory authority of the public officials, by this Court's conception that the Due Process Clause of the Fourteenth Amendment precluded a state from giving its public officials authority to accept service in terms broad enough to bind a foreign corporation in proceedings against it to enforce an obligation arising outside of the state of the forum. That conception now has been modified by the rationale adopted in later decisions and particularly in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95.
14
Today if an authorized representative of a foreign corporation be physically present in the state of the forum and be there engaged in activities appropriate to accepting service or receiving notice on its behalf, we recognize that there is no unfairness in subjecting that corporation to the jurisdiction of the courts of that state through such service of process upon that representative. This has been squarely held to be so in a proceeding in personam against such a corporation, at least in relation to a cause of action arising out of the corporation's activities within the state of the forum.5
15
The essence of the issue here, at the constitutional level, is a like one of general fairness to the corporation. Appropriate tests for that are discussed in International Shoe Co. v. Washington, supra, 326 U.S. at pages 317—320, 66 S.Ct. at pages 158, 160. The amount and kind of activities which must be carried on by the foreign corporation in the state of the forum so as to make it reasonable and just to subject the corporation to the jurisdiction of that state are to be determined in each case. The corporate activities of a foreign corporation which, under state statute, make it necessary for it to secure a license and to designate a statutory agent upon whom process may be served provide a helpful but not a conclusive test. For example, the state of the forum may by statute require a foreign mining corporation to secure a license in order lawfully to carry on there such functional intrastate operations as those of mining or refining ore. On the other hand, if the same corporation carries on, in that state, other continuous and systematic corporate activities as it did here—consisting of directors' meetings, business correspondence, banking, stock transfers, payment of salaries, purchasing of machinery, etc.—those activities are enough to make it fair and reasonable to subject that corporation to proceedings in personam in that state, at least insofar as the proceedings in personam seek to enforce causes of action relating to those very activities or to other activities of the corporation within the state.
16
The instant case takes us one step further to a proceeding in personam to enforce a cause of action not arising out of the corporation's activities in the state of the forum. Using the tests mentioned above we find no requirement of federal due process that either prohibits Ohio from opening its courts to the cause of action here presented or compels Ohio to do so. This conforms to the realistic reasoning in International Shoe Co. v. Washington, supra, 326 U.S. at pages 318—319, 66 S.Ct. at pages 159—160:
17
'* * * there have been instances in which the continuous corporate operations within a state were thought so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities. See Missouri, K. & T.R. Co. v. Reynolds, 255 U.S. 565, 41 S.Ct. 446, 65 L.Ed. 788;6 Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 115 N.E. 915; cf. St. Louis S.W.R. Co. v. Alexander, supra (227 U.S. 218, 33 S.Ct. 245, 57 L.Ed. 486).
18
'* * * some of the decisions holding the corporation amenable to suit have been supported by resort to the legal fiction that it has given its consent to service and suit, consent being implied from its presence in the state through the acts of its authorized agents. Lafayette Insurance Co. v. French, 18 How. 404, 407; St. Clair v. Cox, supra, 106 U.S. (350) 356, 1 S.Ct. (354) 359, 27 L.Ed. 222; Commercial Mutual Accident Co. v. Davis, supra, 213 U.S. (245) 254, 29 S.Ct. (445) 447, 53 L.Ed. 782; State of Washington v. Superior Court, 289 U.S. 361, 364, 365, 53 S.Ct. 624, 626, 627, 77 L.Ed. 1256. But more realistically it may be said that those authorized acts were of such a nature as to justify the fiction. Smolik v. Philadelphia & Reading Co., D.C., 222 F. 148, 151. Henderson, The Position of Foreign Corporations in American Constitutional Law, 94, 95.
19
'* * * Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure. That clause does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations. Cf. Pennoyer v. Neff, supra (95 U.S. 714, 24 L.Ed. 565); Minnesota Commercial Assn. v. Benn, 261 U.S. 140, 43 S.Ct. 293, 67 L.Ed. 573.'
20
It remains only to consider, in more detail, the issue of whether, as a matter of federal due process, the business done in Ohio by the respondent mining company was sufficiently substantial and of such a nature as to permit Ohio to entertain a cause of action against a foreign corporation, where the cause of action arose from activities entirely distinct from its activities in Ohio. See International Shoe Co. v. Washington, supra, 326 U.S. at page 318, 66 S.Ct. at page 159.
21
The Ohio Court of Appeals summarized the evidence on the subject. 88 Ohio App. at pages 119—125, 95 N.E.2d at pages 6—9. From that summary the following facts are substantially beyond controversy: The company's mining properties were in the Philippine Islands. Its operations there were completely halted during the occupation of the Islands by the Japanese. During that interim the president, who was also the general manager and principal stockholder of the company, returned to his home in Clermont County, Ohio. There he maintained an office in which he conducted his personal affairs and did many things on behalf of the company. He kept there office files of the company. He carried on there correspondence relating to the business of the company and to its employees. He drew and distributed there salary checks on behalf of the company, both in his own favor as president and in favor of two company secretaries who worked there with him. He used and maintained in Clermont County, Ohio, two active bank accounts carrying substantial balances of company funds. A bank in Hamilton County, Ohio, acted as transfer agent for the stock of the company. Several directors' meetings were held at his office or home in Clermont County. From that office he supervised policies dealing with the rehabilitation of the corporation's properties in the Philippines and he dispatched funds to cover purchases of machinery for such rehabilitation. Thus he carried on in Ohio a continuous and systematic supervision of the necessarily limited wartime activities of the company. He there discharged his duties as president and general manager, both during the occupation of the company's properties by the Japanese and immediately thereafter. While no mining properties in Ohio were owned or operated by the company, many of its wartime activities were directed from Ohio and were being given the personal attention of its president in that State at the time he was served with summons. Consideration of the circumstances which, under the law of Ohio, ultimately will determine whether the courts of that State will choose to take jurisdiction over the corporation is reserved for the courts of that State. Without reaching that issue of state policy, we conclude that, under the circumstances above recited, it would not violate federal due process for Ohio either to take or decline jurisdiction of the corporation in this proceeding. This relieves the Ohio courts of the restriction relied upon in the opinion accompanying the syllabus below and which may have influenced the judgment of the court below.
22
Accordingly, the judgment of the Supreme Court of Ohio is vacated and the cause is remanded to that court for further proceedings in the light of this opinion.7
23
It is so ordered.
24
Judgment vacated and cause remanded for further proceedings.
25
Mr. Justice BLACK concurs in the result.
26
Mr. Justice MINTON, with whom the CHIEF JUSTICE joins, dissenting.
27
As I understand the practice in Ohio, the law as agreed to by the court is stated in the syllabus. If an opinion is filed, it expresses the views of the writer of the opinion and of those who may join him as to why the law was so declared in the syllabus. Judge Taft alone filed an opinion in the instant case.
28
The law as declared in the syllabus, which is the whole court speaking, is clearly based upon adequate state grounds. Judge Taft in his opinion expresses the view that the opinions of this Court on due process grounds require the court to declare the law as stated in the syllabus. As the majority opinion of this Court points out, this is an erroneous view of this Court's decisions. 'This brings the situation clearly within the settled rule whereby this Court will not review a State court decision resting on an adequate and independent nonfederal ground even though the State court may have also summoned to its support an erroneous view of federal law.' Radio Station WOW v. Johnson, 326 U.S. 120, 129, 65 S.Ct. 1475, 1480, 89 L.Ed. 2092.
29
The case of State Tax Comm'n v. Van Cott, 306 U.S. 511, 59 S.Ct. 605, 83 L.Ed. 950, is not this case. There the case was not clearly decided on an adequate state ground, but the state ground and the federal ground were so interwoven that this Court was 'unable to conclude that the judgment rests upon an independent interpretation of the state law.' 306 U.S. at page 514, 59 S.Ct. at page 606. In the instant case, a clear statement of the state law is made by the court in the syllabus. Only Judge Taft has summoned the erroneous view of this Court's decisions to his support of the adequate state ground approved by the whole court.
30
What we are saying to Ohio is: 'You have decided this case on an adequate state ground, denying service, which you had a right to do, but you don't have to do it if you don't want to, as far as the decisions of this Court are concerned.' I think what we are doing is giving gratuitously an advisory opinion to the Ohio Supreme Court. I would dismiss the writ as improvidently granted.
1
See Perkins v. Perkins, 57 Phil.R. 205; Harden v. Benguet Consolidated Mining Co., 58 Phil.R. 141; Perkins v. Guaranty Trust Co., 274 N.Y. 250, 8 N.E.2d 849; Perkins v. Beneguet Consolidated Mining Co., 55 Cal.App.2d 720, 132 P.2d 70, rehearing denied, 55 Cal.App.2d 774, 132 P.2d 102, certiorari denied, 319 U.S. 774, 63 S.Ct. 1435, 37 L.Ed. 1721; 60 Cal.App.2d 845, 141 P.2d 19, certiorari denied, 320 U.S. 803, 815, 64 S.Ct. 429, 88 L.Ed. 485; Perkins v. First National Bank of Cincinnati, Com.Pl., Hamilton County, Ohio, 79 N.E.2d 159.
2
Ohio requires a foreign corporation to secure a license to transact 'business' in that State, Throckmorton's Ohio Code, 1940, § 8625—4, and to appoint a 'designated agent' upon whom process may be served, §§ 8625—2, 8625—5. The mining company has neither secured such a license nor designated such an agent. While this may make it subject to penalties and handicaps, this does not prevent it from transacting business or being sued. § 8625—25. If it has a 'managing agent' in Ohio, service may be made upon him. § 11290. Such service is a permissive alternative to service on the corporation through its president or other chief officer. § 11288. Lively v. Picton, 6 Cir., 218 F. 401, 406—407. The evidence as to the business activities of the corporation in Ohio is summarized by the Ohio Court of Appeals. 88 Ohio App. 118, 119—125, 95 N.E.2d 5, 6—9. That court held that such activities did not constitute the transaction of business referred to in the Code. In its syllabus, however, the Supreme Court of Ohio, without passing upon the sufficiency of such acts for the above statutory purpose, and without defining its use of the term, affirmed the judgment dismissing the complaint and assumed that what the corporation had done in Ohio constituted 'doing business' to an extent sufficient to be recognized in reaching its decision.
3
In 1858 the Supreme Court of Ohio promulgated the following rule:
'A syllabus of the points decided by the Court in each case, shall be stated, in writing, by the Judge assigned to deliver the opinion of
the Court, which shall be confined to the points of law, arising from the facts of the case, that have been determined by the Court. And the syllabus shall be submitted to the Judges concurring therein, for revisal, before publication thereof; and it shall be inserted in the book of reports without alteration, unless by the consent of the Judges concurring therein.' 5 Ohio St. vii.
This policy has been recognized by statute. Bates Ohio R.S. § 427, as amended, 103 Ohio Laws 1913, § 1483, and 108 Ohio Laws 1919, § 1483. It appears now in Throckmorton's Ohio Code, 1940, § 1483, as follows: 'Whenever it has been thus decided to report a case for publication the syllabus thereof shall be prepared by the judge delivering the opinion, and approved by a majority of the members of the court; and the report may be per curiam, or if an opinion be reported, the same shall be written in as brief and concise form as may be consistent with a clear presentation of the law of the case. * * * Only such cases as are hereafter reported in accordance with the provisions of this section shall be recognized by and receive the official sanction of any court within the state.'
There are many references to this practice, both in the syllabi and opinions written for the Supreme Court of Ohio. Typical of these is the following:
'It has long been the rule of this court that the syllabus contains the law of the case. It is the only part of the opinion requiring the approval of all the members concurring in the judgment. Where the judge writing an opinion discusses matters or gives expression to his views on questions not contained in the syllabus, it is merely the personal opinion of that judge.' State ex rel. Donahey v. Edmondson, 89 Ohio St. 93, 107—108, 105 N.E. 269, 273, 52 L.R.A.,N.S., 305.
See also, Williamson Heater Co. v. Radich, 128 Ohio St. 124, 190 N.E. 403; Baltimore & O.R. Co. v. Baillie, 112 Ohio St. 567, 148 N.E. 233. A syllabus must be read in the light of the facts in the case, even where brought out in the accompanying opinion rather than in the syllabus itself. See Williamson Heater Co. v. Radich, supra; Perkins v. Bright, 109 Ohio St. 14, 19—20, 141 N.E. 689, 690—691; In re Poage, 87 Ohio St. 72, 82—83, 100 N.E. 125, 127—128.
4
'However, the doing of business in a state by a foreign corporation, which has not appointed a statutory agent upon whom service of process against the corporation can be made in that state or otherwise consented to service of summons upon it in actions brought in that state, will not make the corporation subject to service of summons in an action in personam brought in the courts of that state to enforce a cause of action in no way related to the business or activities of the corporation in that state. Old Wayne Mutual Life Ass'n of Indianapolis v. McDonough, 204 U.S. 8, 22, 23, 27 S.Ct. 236, 51 L.Ed. 345; Simon v. Southern Ry. Co., 236 U.S. 115, 129, 130 and 132, 35 S.Ct. 255, 59 L.Ed. 492. See, also, Pennsylvania Fire Ins. Co. of Philadelphia v. Gold Issue Mining & Milling Co., 243 U.S. 93, 95 and 96, 37 S.Ct. 344, 61 L.Ed. 610; Robert Mitchell Furniture Co. v. Selden Breck Construction Co., 257 U.S. 213, 215 and 216, 42 S.Ct. 84, 66 L.Ed. 201; International Shoe Co. v. Washington, 326 U.S. 310, 319 and 320, 66 S.Ct. 154, 90 L.Ed. 95.
'An examination of the opinions of the Supreme Court of the United States in the foregoing cases will clearly disclose that service of summons in such an instance would be void as wanting in due process of law.' 155 Ohio St. 116, 119—120, 98 N.E.2d 33, 35.
5
'* * * The obligation which is here sued upon arose out of those very activities. It is evident that these operations establish sufficient contacts or ties with the state of the forum to make it reasonable and just according to our traditional conception of fair play and substantial justice to permit the state to enforce the obligations which appellant has incurred there. Hence we cannot say that the maintenance of the present suit in the State of Washington involves an unreasonable or undue procedure.' International Shoe Co. v. Washington, supra, 326 U.S. at page 320, 66 S.Ct. at page 160.
6
This citation does not disclose the significance of this decision but light is thrown upon it by the opinions of the state court below. Reynolds v. Missouri, K. & T.R. Co., 224 Mass. 379, 113 N.E. 413; 228 Mass. 584, 117 N.E. 913. In addition to the cases cited in the text see Barrow S.S. Co. v. Kane, 170 U.S. 100, 18 S.Ct. 526, 42 L.Ed. 964; Pennsylvania Fire Insurance Co. v. Gold Issue Mining Co., 243 U.S. 93, 37 S.Ct. 344, 61 L.Ed. 610 (statutory agent appointed); Philadelphia & Reading R. Co. v. McKibbin, 243 U.S. 264, 268—269, 37 S.Ct. 280, 281, 282, 61 L.Ed. 710 (question left open).
7
For like procedure followed under somewhat comparable circumstances see State Tax Comm'n v. Van Cott, 306 U.S. 511, 59 S.Ct. 605, 83 L.Ed. 950.
| 34
|
342 U.S. 396
72 S.Ct. 421
96 L.Ed. 441
FIRST NAT. BANK OF CHICAGOv.UNITED AIR LINES, Inc.
No. 349.
Argued Jan. 8, 1952.
Decided March 3, 1952.
Rehearing Denied April 7, 1952.
See 343 U.S. 921, 72 S.Ct. 675.
Mr. Robert J. Burdett, Chicago, Ill., for petitioner.
Mr. David Jacker, Chicago, Ill., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
John Louis Nelson was killed when one of respondent's airliners crashed in Utah. Claiming $200,000 under the Utah wrongful death statute, petitioner brought this action in a United States district court in Illinois. Decedent prior to his death was a resident and citizen of Illinois; petitioner, his executor, is an Illinois bank; and respondent, United Air Lines, Inc., is a Delaware corporation doing business in Illinois. Since the jurisdictional amount and diversity of citizenship requirements have been met, the case is properly triable under 28 U.S.C. § 1332, 28 U.S.C.A. § 1332, unless ch. 70, § 2 of the Illinois Revised Statutes bars the action. This Illinois law provides: 'no action shall be brought or prosecuted in this State to recover damages for a death occurring outside of this State where a right of action for such death exists under the laws of the place where such death occurred and service of process in such suit may be had upon the defendant in such place.'
2
The District Court and Court of Appeals, relying on the doctrine declared in Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, as discussed and applied in later cases,1 held that in a diversity case such as this the state statute was binding on the federal as well as state courts in Illinois and constituted a bar to maintenance of this action.2 In so doing, they rejected two constitutional contentions made by petitioner: (1) Congress having granted diversity jurisdiction to federal district courts pursuant to power granted by Article III of the Constitution, that jurisdiction cannot be abridged or destroyed by the Illinois statute; (2) the Illinois statute violates the Full Faith and Credit Clause of the United States Constitution (Art. IV, § 1) in providing that claims for Utah deaths shall not be enforced in Illinois state courts where service on defendants could be had in Utah. We need not discuss this first constitutional contention or the Erie R. Co. v. Tompkins problems presented by it, for we recently held in Hughes v. Fetter, 341 U.S. 609, 71 S.Ct. 980, 95 L.Ed. 1212, that a Wisconsin statute, much like that of Illinois, did violate the Full Faith and Credit Clause. It was to consider this full faith and credit question with reference to the Illinois statute that we granted certiorari. 342 U.S. 875, 72 S.Ct. 168.
3
The Wisconsin statute invalidated in Hughes v. Fetter, supra, barred suit in the Wisconsin courts for any wrongful death caused outside the state. The Illinois statute before us today is the exact duplicate of the Wisconsin statute with the single exception that suit is permitted in Illinois under another state's wrongful death statute if service of process cannot be had on the defendant in the state where the death was brought about. That Illinois is willing for its courts to try some out-of-state death actions is no reason for its refusal to grant full faith and credit as to others. The reasons supporting our invalidation of Wisconsin's statute apply with equal force to that of Illinois. This is true although Illinois agrees to try cases where service cannot be obtained in another state. While we said in Hughes v. Fetter that it was relevant that Wisconsin might be the only state in which service could be had on one of the defendants, we were careful to point out that this fact was not crucial. Nor is it crucial here that Illinois only excludes cases that can be tried in other states. We hold again that the Full Faith and Credit Clause forbids such exclusion. The District Court should not have dismissed this case.
4
Reversed.
5
Mr. Justice JACKSON, whom Mr. Justice MINTON joins, concurring in the result.
6
I part company with the Court as to the road we will travel to reach a destination where all agree we will stop, at least for the night. But sometimes the path that we are beating out by our travel is more important to the future wayfarer than the place in which we choose to lodge.
7
There are two possible routes to the agreed destination. One requires that a state statute prescribing jurisdictional limitations on its own courts be declared unconstitutional—a path which a century and a half of precedent constrains us to avoid if another way is available. This, together with adherence to the views expressed in dissent in Hughes v. Fetter, 341 U.S. 609, 71 S.Ct. 980, 95 L.Ed. 1212, persuades me to resolve the issue of jurisdiction of federal courts by reference to the Act of Congress which confers that jurisdiction.
8
Whether or not Illinois may validly close her own courts to litigation of this kind, Illinois most assuredly cannot prescribe the subject matter jurisdiction of federal courts even when they sit in that State. Congress already has done this, 28 U.S.C. § 1332(a)(1), 28 U.S.C.A. § 1332(a)(1), and state law is powerless to enlarge, vary, or limit this requirement. The parties to this case have showed the diversity of citizenship and amount in controversy required by Congress, and therefore the federal court, by virtue of the law of its own being, has jurisdiction of their action.
9
The suggestion that Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, and its progeny diminish the jurisdiction of a federal court sitting in a diversity case by assimilating any limitation that the state may impose on her own courts seems to confuse the law of jurisdiction with substantive law. In Erie and the cases which have followed, this Court has gone far in requiring that a federal court exercising diversity jurisdiction apply the same law as would be applied if the action were brought in the state courts. But in so doing the Court has been interpreting the Rules of Decision Act, 28 U.S.C. § 1652, 28 U.S.C.A. § 1652, which reads as follows: '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.' It is indeed fanciful to suggest that a state statute relating to the power of its own courts is an applicable 'rule of decision' under this statute, when Congress in passing the federal jurisdictional grant has specifically 'otherwise required and provided.' 28 U.S.C. § 1332(a)(1), 28 U.S.C.A. § 1332(a)(1). The petitioner enters the federal court not by the grace of the laws of Illinois but by the grace of the laws of the United States.
10
The establishment of jurisdiction is, however, the beginning and not the end of the decision of the case in the trial court. What law must be applied in adjudicating the substantive rights of these parties? The opinion of the Court is silent on this point, but its line of reasoning seems to imply that the federal trial court must look to Illinois law for a conflicts rule which would govern this kind of case if brought in Illinois courts. Since Illinois has, pursuant to statute, refused to entertain such actions as this, it might be supposed that such law would be hard to find.
11
In my view, the federal court no more derives substantive law for this case from Illinois than it does its jurisdiction. For regardless of what Illinois might say on this subject, the Constitution has 'otherwise provided.' I believe, as expressed in Hughes v. Fetter, that the State was free to refuse this case a forum, but, if it undertook to adjudicate the rights of the parties, the Constitution would require it to apply the law of Utah, because all elements of the wrong alleged here occurred in Utah. For the essence of the Full Faith and Credit Clause is that certain transactions, wherever in the United States they may be litigated, shall have the same legal consequences as they would have in the place where they occurred. Order of United Commercial Travelers v. Wolfe, 331 U.S. 586, 67 S.Ct. 1355, 91 L.Ed. 1687; John Hancock Mutual Life Ins. Co. v. Yates, 299 U.S. 178, 57 S.Ct. 129, 81 L.Ed. 106.
12
There is undoubtedly some area of freedom for state conflicts law outside the requirements of the Full Faith and Credit Clause. In such matters, unreached by constitutional law, the state rule would prevail in a diversity court. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477. But if a transaction is so associated with one jurisdiction that the Constitution compels any forum in which the transaction is litigated to apply the law of that jurisdiction, is it not the Constitution instead of state conflicts law which determines what law the federal court shall apply?
13
The Court's detour follows this itinerary: the federal court is bound by the law of Illinois; Illinois law is wrong; we will remake the law of Illinois to provide the exact opposite to that which the state has provided; then the federal court can apply the law we have remade and pretend it is applying Illinois law. This is too tortuous an excursion for me. Since as a matter of constitutional provision liability for this alleged tort must be adjudged under Utah law and, the case being within the statutory jurisdiction of the District Court, it may ascertain and apply the law of Utah without straining it through the Illinois sieve.
14
Mr. Justice REED, dissenting.
15
I dissent on the ground that Hughes v. Fetter, 341 U.S. 609, 71 S.Ct. 980, 95 L.Ed. 1212, should not be extended to compel a state to entertain an action for wrongful death if the claim could be effectively litigated in the courts of the state where the cause of action arose.
16
The reasoning for this conclusion is stated in the dissent in Hughes v. Fetter, supra.
17
Mr. Justice FRANKFURTER, dissenting.
18
As to any question based on diversity jurisdiction, the series of cases culminating in Woods v. Interstate Realty Co., 337 U.S. 535, 69 S.Ct. 1235, 93 L.Ed. 1524, disposes of it. As to the constitutional claim under the Full Faith and Credit Clause, I adhere to the views expressed in Hughes v. Fetter, 341 U.S. 609, 614, 71 S.Ct. 980, 983, 95 L.Ed. 1212.
1
E.g., Angel v. Bullington, 330 U.S. 183, 67 S.Ct. 657, 91 L.Ed. 832; Woods v. Interstate Realty Co., 337 U.S. 535, 69 S.Ct. 1235, 93 L.Ed. 1524.
2
7 Cir., 190 F.2d 493. The Court of Appeals cited and relied on two of its former holdings, Trust Co. of Chicago v. Pennsylvania R. Co., 7 Cir., 183 F.2d 640, and Munch v. United Air Lines, 7 Cir., 184 F.2d 630.
| 78
|
342 U.S. 512
72 S.Ct. 410
96 L.Ed. 534
BLACKMARv.GUERRE et al.
No. 361.
Argued Jan. 30, 31, 1952.
Decided March 3, 1952.
Mr. Rene R. Nicaud, New Orleans, La., for petitioner.
Mr. Benjamin Forman, for respondent.
Mr. Justice MINTON delivered the opinion of the Court.
1
Petitioner, a veteran employed as authorization officer in the Regional Office of the Veterans' Administration in New Orleans, was removed from his position. He appealed under § 14 of the Veterans' Preference Act of 1944, 5 U.S.C. (Supp. IV) § 863, 5 U.S.C.A. § 863, to the Tenth Regional Office of the United States Civil Service Commission in New Orleans. The Regional Board found that his discharge was not warranted and recommended that he be reinstated to his position. The Veterans' Administration appealed to the Board of Appeals and Review of the Civil Service Commission in Washington. The Commission reversed the Tenth Regional Board and so notified petitioner.
2
Petitioner then instituted this suit in the District Court for the Eastern District of Louisiana, naming as defendants Guerre, the Regional Manager of the Veterans' Administration, who had first discharged him, and the United States Civil Service Commission. Guerre was served personally. Service on the Commission was sought through personal service on Weinstein, the United States District Attorney, and on Leach, the Regional Director of the Tenth United States Civil Service Region. Both Weinstein and Leach resided within the Eastern District of Louisiana. Service by registered mail was made in the District of Columbia upon the Attorney General of the United States and the United States Civil Service Commission.
3
Petitioner prayed for a judgment of the District Court setting aside and annulling his discharge by Guerre and the action of the Civil Service Commission confirming Guerre's action, and declaring that 'plaintiff is entitled to an order from the United States Civil Service Commission directing * * * Guerre * * * to restore plaintiff to his aforesaid position' with back pay. Respondents appeared and filed a motion to dismiss because of improper venue and lack of jurisdiction. After this motion was overruled, respondents filed an answer raising, among other things, the same issues. On motions of both parties for summary judgment, the court sustained that of respondents, holding that it lacked jurisdiction over the persons of the Commissioners, who were not residents of the Eastern District of Louisiana and who were indispensable parties. The Court of Appeals affirmed on the ground that there was no venue in the District Court, without prejudice to further proceedings by petitioner in the proper venue. 5 Cir., 190 F.2d 427. We granted certiorari. 342 U.S. 884, 72 S.Ct. 176, 96 L.Ed. —-.
4
We do not reach the merits in this proceeding. We are met at the threshold with a challenge by motion and answer as to the venue and jurisdiction of the District Court of Louisiana to entertain this action. These defenses as to law and fact were properly presented in this manner. Fed.Rules Civ.Proc. rule 12(b), 28 U.S.C.A.
5
If the Commission could be sued eo nomine, we would be confronted with the question of whether service as here made would be sufficient to bring the Commission into court; but Congress has not constituted the Commission a body corporate or authorized it to be sued eo nomine.
6
It is suggested that such authorization is given by the Hatch Act.1 Not so. While § 118k(c) of 5 U.S.C. does provide that a state officer or employee found to have violated § 118k(b) may obtain review in the District Court of the district in which he resides, this is not authorization for a new proceeding against the Civil Service Commission. It is authorization only for a transfer of the case from the Commission to the District Court—a continuation of the same proceeding before another tribunal. Review is instituted by petition and notice to the Commission, which is directed by the Act to file a transcript of the record in the case in the District Court. The court reviews the case on the old record, with the right to hear further evidence. Even this limited review is not afforded federal employees found to have violated § 118i. Thus, by no stretch of the imagination can the limited review granted state employees by the Hatch Act be deemed an authorization by Congress for the present suit against the Commission. When Congress authorizes one of its agencies to be sued eo nomine, it does so in explicit language, or impliedly because the agency is the offspring of such a suable entity. See Keifer & Keifer v. Reconstruction Finance Corporation, 306 U.S. 381, 390, 59 S.Ct. 516, 518, 83 L.Ed. 784.
7
Since the Civil Service Commission is not a corporate entity which Congress has authorized to be sued, a suit involving the action of the Commission generally must be brought against the individual Commissioners as members of the United States Civil Service Commission. No such suit was brought here, and no service was had upon the individuals comprising the Civil Service Commission. Therefore, neither the individuals comprising the Civil Service Commission nor the Commission as a suable entity was before the District Court.
8
We do not have a question of venue as to defendants until we have defendants before the court. The only defendant before the court was Guerre. The venue as to him was all right, but it is obvious no relief can be granted against him.
9
It is further suggested that judicial review is authorized by the Administrative Procedure Act, 5 U.S.C. § 1001 et seq., 5 U.S.C.A. § 1001 et seq. Certainly there is no specific authorization in that Act for suit against the Commission as an entity. Still less is the Act to be deemed an implied waiver of all governmental immunity from suit. If the Commission's action is reviewable under § 1009,2 it is reviewable only in a court of 'competent jurisdiction.' Assuming, without deciding, that Commission action is reviewable by court action under § 1009, it must follow that review must be in that district where the Commissioners can be served. Since we have held that the Civil Service Commission is not an entity that may be sued anywhere it may be functioning but only the Commissioners may be sued where they can be served, § 1009 does not aid petitioner in an action brought in Louisiana. The courts of the District of Columbia are the only courts of 'competent jurisdiction' to reach the members of the Civil Service Commission.
10
Since the members of the Civil Service Commission were never served, and could not be served, in the District Court for the Eastern District of Louisiana, and the Civil Service Commission is not a corporate entity, it follows that the only defendant before the court was Guerre, and, as we have pointed out, no relief could possibly be granted against him in these proceedings, the judgment is affirmed.
11
Affirmed.
12
Mr. Justice BLACK dissents.
1
53 Stat. 1147, as amended, 54 Stat. 767, § 12(c), 5 U.S.C. (Supp. IV) § 118k(c), 5 U.S.C.A. § 118k(c).
2
'§ 1009. Judicial review of agency action.
'Except so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion.
'(a) Right of review.
'Any person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action within the meaning of any relevant statute, shall be entitled to judicial review thereof.
'(b) Form and venue of proceedings.
'The form of proceeding for judicial review shall be any special statutory review proceeding relevant to the subject matter in any court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action * * * in any court of competent jurisdiction. * * *'
| 89
|
342 U.S. 451
72 S.Ct. 433
96 L.Ed. 497
BRANNAN, Secretary of Agriculture,v.STARK et al. DAIRYMEN'S LEAGUE CO-OP. ASS'N, Inc. v. STARK et al.
Nos. 6, 7.
Argued and Submitted Oct. 9, 1951.
Decided March 3, 1952.
Mr. Neil Brooks, Washington, D.C., for Brannan.
Mr. Edward B. Hanify, Boston, Mass., for respondents.
Messrs. Seward A. Miller, New York City, Frederic P. Lee, Washington, D.C., Maurice A. Gellis, New York City, for Dairymen's League Co-operative Ass'n, Inc.
Mr. Justice CLARK delivered the opinion of the Court.
1
This action by dairy farmers, nonmembers of cooperative associations, concerns 1941 amendments to an order of the Secretary of Agriculture dealing with the marketing of milk in the Boston area. It was previously here as Stark v. Wickard, 1944, 321 U.S. 288, 64 S.Ct. 559, 88 L.Ed. 733, where it was held that the respondents had such an interest in the Order as to give them legal standing to object to those of its provisions here under attack. Upon remand the provisions were held invalid by the District Court, 82 F.Supp. 614, and that decision was affirmed in the Court of Appeals for the District of Columbia Circuit. 87 U.S.App. D.C. 388, 185 F.2d 871. We granted certiorari. 341 U.S. 908, 71 S.Ct. 621, 95 L.Ed. 1346.
2
The question now presented is whether those amendments to the Order which provide for certain payments to cooperative associations are within the authority granted the Secretary by the Agricultural Marketing Agreement Act of 1937.1 The respondents seek to enjoin the enforcement of the provisions in question.
3
The purpose of the Act and the nature of the Secretary's Order No. 4 thereunder2 are set out in some detail in Stark v. Wickard, supra, 321 U.S. at pages 291—302, 64 S.Ct. at pages 561 567. It is here sufficient to note the following aspects of Order No. 4, as amended: In the Order, issued pursuant to the Act, the Secretary divided all milk marketed in the Greater Boston area into Class I, which is sold as fluid milk, and Class II, which is used for other purposes such as the manufacture of butter and cheese. The Order provides for the fixing of minimum prices to be paid by handlers for each of these classes of milk. Each handler pays for milk in accordance with the amount of each class he has purchased. Producers, however, are paid the same price for milk delivered no matter what use is made of the particular milk by the handler. The Market Administrator computes, on the basis of prices paid by handlers, the value of all milk sold in the area each month. After making certain adjustments, he divides that value, as adjusted, by the total quantity of milk sold in the area during the month, to determine the 'blended price,' which is the price actually paid the producer. One adjustment made in determining the 'blended price' is the deduction providing for the disputed payments to cooperatives.3 This deduction is thus 'a burden on every area sale.' Stark v. Wickard, supra, 321 U.S. at page 303, 64 S.Ct. at page 567. 'Apparently, (it) is the only deduction that is an unrecoverable charge against the producers. The other items deducted under (the Order) are for a revolving fund or to meet differentials in price because of location, seasonal delivery, et cetera.' Id., 321 U.S. at page 301, 64 S.Ct. at page 567. The effect of the deduction and the correlative payments to cooperatives is to reduce the amount which producers, such as respondents, who are not members of cooperatives would otherwise receive for their milk, and to increase correspondingly the receipts of cooperatives.4 We must determine whether the Secretary was authorized by the statute to include the provisions requiring this deduction and these payments in the Order. No question is presented as to the adequacy of the evidence to support the findings of the Secretary, but rather, a question as to the power granted the Secretary by Congress.
4
The disputed provisions were introduced into the Boston Order in 1941, after hearings called by the Secretary. Affidavits, filed by representatives of the Secretary in support of his motion for summary jdugment in the District Court, show the following: A major issue at the hearings was the amount of a uniform allowance, previously 26¢ per hundredweight, which was reflected in the price paid by all handlers for Class II milk.5 This allowance resulted in a lower price to handlers for Class II milk than for Class I milk. It was intended to defray the cost of handling surplus milk. There was a considerable variance in milk plant costs which was thought to make continuance of a uniform rate undesirable. Cooperative plants showed higher costs than those of proprietary handlers. That difference was attributable not only to the cooperatives' maintenance of a reserve supply to meet irregular demands of proprietary handlers for Class I milk, but also to overcapitalization and excess capacity which had existed prior to any federal regulation. To meet these higher costs cooperatives proposed a lower uniform allowance for Class II milk, coupled with payment to cooperatives only for market services, although they had engaged in the activities claimed to constitute market services for years without any such payment. In the amendments resulting from the hearings, the uniform allowance to handlers was reduced from 26¢ to 21 1/2¢, while at the same time the provisions here contested, requiring payments to cooperatives alone, were introduced.
5
Section 8c(5) of the Act provides that orders relating to milk and its products shall contain one or more of certain enumerated terms and conditions, 'and (except as provided in subsection (7)) no others (emphasis added).6 It is paragraph (D) of subsection (7) upon which the Secretary relies. That paragraph authorizes provisions 'incidental to, and not inconsistent with, the terms and conditions specified in subsections (5), (6), and (7) and necessary to effectuate the other provisions of such order.'7 The provisions here in question are not specifically authorized by any part of the Act. Both courts below thought these provisions to be neither incidental nor necessary, and to be inconsistent with terms specified in the named subsections.8
6
The payments to the cooperative associations are said to be justified as remuneration for services performed for the market by the associations. To qualify for the payments, an association must meet eight requirements listed in the Order.9 But none of these shows any indication that the activity it prescribes will benefit nonmembers, with the possible exception of the seventh, which requires that the association collaborate 'with similar associations in activities incident to the maintenance and strengthening of collective bargaining by producers and the operation of a plan of uniform pricing of milk to handlers.'10 Even if this requirement comprehends a service to nonmember producers substantial enough to be significant in determining the validity of a mandatory contribution from them to cooperatives, it does not support the exaction in issue, which concededly is based mainly upon other services primarily performed for members.
7
Indeed, those 'services' which the Secretary principally urges as justifying the payments do not appear among the expressed prerequisites for the payments. Chief among the activities claimed to benefit all producers are those which tend to maintain an adequate supply of fluid milk at all times and to dispose of surplus supply. A principal source of the problems of milk marketing is the seasonal character of milk production. Herds sufficient to meet the demand for fluid milk during the winter months produce much more than enough to satisfy that demand during the summer months. It is contended that the cooperative associations handle a proportionately larger share of surplus milk than other handlers. It appears that they engage in the manufacture of milk products as a means of absorbing the surplus, and otherwise aid in obviating the 'dumping' of surplus and discouraging the reduction of herds to a point below that necessary to supply the demand in the season of low production. It may be conceded that these activities are indirectly beneficial to the whole market, even though they are engaged in for the direct advantage of members only. However, proprietary handlers also carry on activities of this kind, and their plants handle two-thirds as much surplus milk as do those of the cooperatives.11 Prior to amendment of the Order in 1941, the cost of handling surplus milk was recognized in the uniform 26¢ allowance to all handlers of Class II milk, but only cooperative associations now receive the payments in issue here. It is clear that the associations are in no way required to handle any of the surplus milk of nonmembers. More significant, there is no requirement in the Order that the associations take any action directed toward solution of the problem, even with respect to surplus milk of their members.12
8
Other 'services' of the cooperatives which are claimed to be beneficial to all producers are, as they affect the issue here, relatively insignificant. These activities are, like the others, primarily designed for the advantage of members, although they may sometimes incidentally benefit the whole market. They generally amount to no more than playing the part of an alert, intelligent, organized participant in the market. They include such functions as employing economists to study the needs of the industry, participating in hearings on orders such as that involved here, being attentive to changing factors in the market, and maintaining the cooperative organizations by promotional work to show farmers the benefits of cooperation and by educational work among members. One may observe some incongruity in requiring some producers to pay others for vigorously prosecuting their own interests, especially where their interests may sometimes conflict with those of the producers burdened with the payments.
9
In these circumstances, we cannot say that the disputed provisions fall within the authority granted by the catch-all phrases of § 8c(7)(D) of the Act. We note at the outset that § 8c(5) states in specific and lengthy detail the provisions which may be included in milk marketing orders. That subsection lays down comprehensive directions for classification, pricing, and the operation of the equalization pool mechanism, particularly as to adjustments and deductions employed in determining the blended price. But § 8c(5) does not authorize the provisions challenged here. Section 8c(7) authorizes a congeries of general terms which may be included in all marketing orders, including those dealing with commodities other than milk and milk products. The Secretary claims authority for the provisions in question is given by the last paragraph of this omnibus subsection, a paragraph authorizing the inclusion of auxiliary provisions 'incidental to * * * the terms and conditions specified in subsections (5), (6), and (7)'.13 Yet it is claimed that the contested provisions are of such basic importance that their validity may be crucial to the success of the whole milk marketing program. We do not think it likely that Congress, in fashioning this intricate marketing order machinery, would thus hang one of the main gears on the tail pipe. The conclusion that these provisions are not 'incidental' to the specified terms is further supported by the presence of § 8c(5)(E), expressly authorizing deductions from payments to producers for other, specified services, and indicating the likelihood of similar specific authorization for the contested deductions if Congress intended that they should be made. Finally, the provisions cannot be incidental to the enumerated terms and conditions since they are inconsistent therewith.
10
The payments to cooperatives are inconsistent with § 8c(5)(A), which provides that all handlers shall pay uniform prices for each class to milk, subject to certain adjustments of no concern here. The discriminatory effect of the payments becomes the more evident when they are considered in context with the reduction in the uniform allowance to all handlers on the price of Class II milk. That reduction was simultaneous with the establishment of the system of payments to be made to cooperatives only and to be funded by deductions from prices paid all producers. The result would have been substantially similar if the allowance to proprietary handlers had been reduced while the allowance to cooperatives had been permitted to remain at its previous higher level. Such a lack of uniformity in prices paid by handlers would clearly have contravened § 8c(5)(A).
11
The deduction for payments to cooperatives is inconsistent with § 8(c)(5)(B), which requires the payment of uniform prices to all producers for all milk delivered, subject to certain adjustments not here pertinent. It has been contended that the deduction does not affect the uniform price of milk, but represents only a reimbursement for services. The argument seems to be that all producers receive a uniform price while the deduction merely constitutes a charge to all producers for services, a charge which happens to be paid certain associations of producers because those associations perform the services. The fact remains that the receipts of nonmembers resulting from delivery of a given quantity of milk are smaller than those of the associations and their members. This is true because nonmembers are paid only the blended price while members receive, through their associations, the disputed payments in addition to the blended price. Although made to members collectively, these payments necessarily redound to members individually. Thus, if they are used to pay the costs of the associations, they reduce pro tanto the contributions which are required from individual members. But we need not go further than to hold that the argument cannot negate inconsistency with the uniform price requirement where, as here, the services for which the payment is made are performed for the direct benefit of the cooperatives' memberships, are but incidentally helpful to other producers, and are not a required condition to receipt of the payments.
12
Since the provisions for payments to cooperatives are not incidental to § 8c(5) and (7), but are inconsistent with the former subsection, we need not determine whether they are 'necessary to effectuate the other provisions'14 of the Order, the third requirement of § 8c(7)(D).
13
When the directly relevant provisions of the Act thus demonstrate lack of authority for the payments to cooperatives, no power to require them can be implied from the general instruction of § 10(b)(1) to the Secretary, directing him to accord 'recognition and encouragement' to cooperative associations.15
14
Without support in the words of the statute the challenged provisions must fall, for neither legislative history nor administrative construction offers any cogent reasons for a contrary result. Available indicia of congressional intent at the time of enactment lend weight to the contention that specific provision would have been made for this kind of payments to cooperatives if they were meant to be made.16 Attempted amendment later to provide authorization for the payments, and the accompanying discussion in Congress, are, as a whole, indecisive.17 Approval of the payments by Congress cannot be inferred from its ratification, upon passage of the Agricultural Marketing Agreement Act in 1937, of marketing orders previously issued under the Agricultural Adjustment Act.18 Even if we were to accept the proposition that Congress there intended to confer statutory authority for all future provisions like any of those then existing in any marketing order, we would reach the same conclusion because neither the provisions for these particular payments nor any closely analogous provisions were at that time present in any marketing orders. Nor have provisions bearing substantial similarity to those before us since been included in other orders so frequently as to amount to a consistent administrative interpretation of import in construing the Act.19 Many provisions for payments to cooperatives appearing in other orders have been of a kind specifically authorized by the statute. Thus, the provision of the first Boston Milk Order for a price differential as between cooperative milk and noncooperative milk was upheld in Green Valley Creamery v. United States,20 as a 'market differential' authorized by § 8c(5)(A)(1).
15
We have no occasion to judge the equity or the wisdom of the payments to cooperatives involved in this case. We hold that they are not authorized by the Act.
16
Affirmed.
17
Mr. Justice JACKSON and Mr. Justice MINTON took no part in the consideration or decision of this case.
18
Mr. Justice BLACK, with whom Mr. Justice REED and Mr. Justice DOUGLAS concur, dissenting.
19
I dissent and would sustain the provisions of the Secretary of Agriculture's Boston milk order which the majority here invalidates. Those provisions require that cooperatives be reimbursed for a part of the cost they incur in performing services which the Secretary and the Court of Appeals have found benefit all dairy farmers in the Boston market area. Two or three sentences, or clauses in them, of today's majority opinion avow that the Court invalidates the payment provisions solely on the ground that the Secretary is without statutory authority to include them in his order. The remainder of the Court's opinion is not at all limited to an attempt to justify an exclusively statutory holding. For despite the clause at the end of the Court's opinion that it does not 'judge the equity or the wisdom of the payments', nearly all of its 15 pages are devoted to a studied effort to leave the impression that the payments are unfair handouts, gratuities, or subsidies to inefficiently operated cooperatives. It seems appropriate, therefore, to explain at the very outset the true nature of these payments and the consequences of outawing them.
20
In general the Secretary's order fixes prices and regulates distribution of milk in the Greater Boston area. Under this marketing system the purchase price of all milk sold by farmers in the area is paid into a collective fund or pool. After deduction of legally authorized amounts it is the duty of the Government's market administrator to distribute the fund so that all contributing farmers will receive so far as possible equal amounts for equal quantities of milk of the same quality. The difficulty of achieving this uniformity of price as between cooperative and non-cooperative farmers is complicated by many factors. Non-member farmers receive direct payment for their milk from this market pool fund. But highly material here is the fact that the pool funds are not distributed to farm cooperative association members but instead are paid directly to the associations of which they are members. These associations then deduct certain expenses before distributing the balance to their member farmers. Many of these expenses are incurred by the association in performing beneficial market-wide services which bring about higher milk prices for all farmers. Fund payments to non-cooperative farmers, however, are subject to no such association deductions. The result is that farmer members of cooperatives may get less for their milk than non-members. See United States v. Rock Royal Co-op., 307 U.S. 533, 579, 580, 59 S.Ct. 993,1015, 1016, 83 L.Ed. 1446. In this way non-members can get a free ride paid for by cooperating farmers; the latter have always objected to this, regarding it as a dog-in-the-manger attitude and an unfair market practice. Before the Government stepped into the milk picture, the cooperating farmers used strong coercive measures to compel non-cooperatives to help pay a fair share of cooperative costs in rendering market-wide services. And from the beginning of government regulation in the 1930's the Government has adopted measures to insure that non-member farmers pay for the benefits they receive.
21
The provisions here nullified prescribe a legal and peaceful method to require non-cooperative farmers to pay their fair share of market costs, thereby preventing the recurrence of the kind of violent strife with which this country became all too familiar before the present national farm policy was adopted. The provisions have been a part of the Boston order since 1941—eleven years. In accordance with them more than one and a half million dollars have been paid to cooperatives.1 If illegally received, I suppose the money is illegally held. Whether these farmer associations can survive the Pandora's box of lawsuits this case is likely to turn loose is anybody's guess. Perhaps most dairy farmers in New England would not of their own accord file suits against the cooperatives, for the record indicates an overwhelming farmer support for the market order including these challenged provisions.2 In fact, the five farmers whose names appear as challengers of these provisions are not the persons most interested in sabotaging the Boston milk order. Expenses of this litigation, already more than $25,000 by 1949, have been borne by milk handlers. These handlers have no financial interest in the fund and did not even have standing to bring this suit in their own name. United States v. Rock Royal Co-op., supra, 307 U.S. 561, 59 S.Ct. 1007, 83 L.Ed. 1446. The attitude of these private proprietors in this and past attacks on cooperatives justifies a rather strong inference that cooperatives will continue to be defendants in lawsuits pushed by wellfinanced adversaries.
22
It may be suggested that despite possible floods of litigation, the cooperatives can be saved from complete bankruptcy by statutes of limitations, judicially created defenses, finespun legal or verbal distinctions, or even by emergency congressional legislation. But if some might happen to befriend cooperatives in the future, the blow today inflicted is hardly calculated to make cooperatives very enthusiastic about performing the important functions in the market program that Congress wanted them to.3 Moreover, these particular New England associations are not the only ones placed in imminent jeopardy by today's holding. As the majority opinion points out, cooperative associations in other areas have been receiving payments for market-wide services under similar market orders of the Secretary. Under such provisions millions of dollars have been received by these other cooperatives. They too have little if any chance to escape harassment from the swarm of lawsuits this case invites.4
23
Congress intended cooperatives to be what they actually have been—the backbone of the farm market system and the dynamo which makes the system function. Without them, many think that program would have been a flop; with their help comparative peace has now come to an industry that in the twenties and early thirties was divided into fighting factions engaging in bitter warfare and bloodshed on the nation's highways. Regardless of the consequences, however, the majority's body blow to cooperatives would be justified if required by congressional command. But Congress has expressed its desire precisely to the contrary. This is shown, I believe beyond all doubt, by the language, history, background and administration of the marketing laws.
24
I feel deeply that the Court's action in this case checkmates the congressional will, unjustifiably inflicts a grievous wrong on cooperatives, and plays havoc with a national farm policy that is working peacefully and well. The judiciary should not cavalierly throw a monkey wrench into its machinery.
25
History, Background, and Administration of the Act.—An inherent problem of the milk industry is that cows produce more milk at some seasons of the year than at others. This means a seasonal excess of supply over demand which can result in disastrous price cutting in an uncontrolled market. In an attempt to avoid the harmful consequences of price cutting farmers combined in cooperative associations which agreed to find a market for all the milk their members produced. Through the channel of collective bargaining, they were able to obtain better prices and a wider market for fluid milk. With the surplusage that still remained, they turned to the manufacture of cheese, butter, and other by-products, even though their manufacturing plants were forced to remain idle during the seasons of no surplusage. Congress itself recognized the inherent value of these cooperative organizations, and with a view to helping farmers improve their market position, it passed the Capper-Volstead Act in 19225 and the Agricultural Marketing Act of 1929.6
26
These Acts treated cooperative associations as useful governmental instrumentalities to achieve congressional agricultural policies. With such help cooperatives made progress, although in every market area there were some producers who refused to join. These non-member producers, without paying anything for it, nevertheless received direct advantages from the work of the cooperatives in raising milk prices, diverting surplusage, and improving general market conditions. This produced deep resentment on the part of cooperative-producers which resulted in bitter strife and unrest.7
27
Thus, an acute agricultural problem has long been one of devising means whereby each producer would pay his fair share of the cost of rendering needed market-wide services. Prior to passage of the Agricultural Adjustment Act of 1933, the cooperatives themselves used thier bargaining power to meet the situation. A 1929 contract between the cooperative association and handlers (purchasers of milk from producers) in the Chicago marketing area illustrates the methods used.8 All handlers were required to agree not to purchase milk from non-member producers unless the latter agreed to a certain deduction. This deduction was equal to that the handlers were required to make in the case of milk purchased from member-producers. In both instances the deduction was paid by the handlers to the cooperative to defray its expense incurred for the services. This procedure insured that no producer of milk received benefits without paying something for them.
28
The Agricultural Adjustment Act of 1933 empowered the Secretary of Agriculture to regulate the milk industry by a system of licensing and marketing agreements. In the licenses issued under this Act, the Secretary included various provisions relating to payments to cooperatives for the rendition of marketing services. Some licenses contained provisions similar to those of the Chicago contract of 1929.9 Others contained provisions which required all producers who did not belong to cooperative associations to pay 'service charges' to organizations created by order of the Secretary.10 These organizations rendered the same services which cooperatives did and charged the same for them. Thus all producers were required to pay their share for market services, either directly to a producer-owned association or to an association sponsored by the Secretary to force non-members to pay their part.
29
In 1935 Congress amended the Agricultural Adjustment Act to provide for market regulation by means of orders. The first Boston milk order was issued under § 8(b) of that Act as amended. That order required the payment of a higher price per hundredweight for cooperative milk than for non-cooperative milk. This was based on the Secretary's finding that 'the differential in prices to associations of producers, and producers, is justified as a reasonable allowance for services actually performed by associations of producers.' Green Valley Creamery v. United States, 1 Cir., 108 F.2d 342, 345. This differential which remained in the order from the date it was issued in 1936 until 1941 was held valid by the Court of Appeals for the First Circuit in Green Valley Creamery v. United States, supra. See also United States v. Rock Royal Co-op., 307 U.S. 533, 562, 565, 59 S.Ct. 993, 1007, 1009, 83 L.Ed. 1446. From 1941 to the present the Secretary's Boston order has contained the kind of cooperative payment provisions now in issue, and treated by the majority as a gratuity.
30
In summary, before 1933 cooperative associations forced payments for their services by exertion of collective strength. After passage of the Agricultural Adjustment Act of 1933 licenses issued under it up to 1935 compelled such payments. Congress amended the Act in 1935. Committee Reports show that orders of the Secretary issued under the Amendment should 'follow the methods employed by cooperative associations of producers prior to the enactment of the Agricultural Adjustment Act and the provisions of licenses issued' between 1933 and 1935.11 The same Committee Report in explaining why the Secretary should recognize and encourage cooperative associations 'to promote efficient methods of marketing and distribution' said: 'it has been found from experience that the participation by * * * associations of producers has been of material value in administering' the agricultural program.12 The 1937 Amendment to the Act went still further and 'expressly ratified, legalized, and confirmed' all 'marketing agreements, licenses, orders, regulations, provisions, and acts' of the Secretary of Agriculture issued under the former Act. 50 Stat. 246, 249, 7 U.S.C.A. § 672. Some of the orders and licenses thus expressly ratified by Congress contained the provisions requiring non-members to pay for collective market services. And a Committee Report on this 1937 legislation referred to the Act's marketing program as 'valuable supplements to the cooperative efforts of producers, particularly in the case of fruits, vegetables, and milk.'13 Finally, in 1948 Congress again manifested its approval of the Secretary's program which at that time included the very cooperative payments now at issue.14
31
The Court brushes aside the foregoing history and invalidates the cooperative payment provisions. Its asserted reason for doing so is that statutory authority for the payments is lacking. We are left in the dark as to whether the Secretary lacks all authority to make payments to any and all persons, or has authority to pay everybody else except cooperatives, or has authority to pay everybody else except New England cooperatives. The Court's opinion leads me to believe that its real basis for invalidation is a belief that:
32
(1) The payments are a mere gratuity, a subsidy to inefficiently operated cooperatives.15
33
(2) The Secretary's order properly construed does not require cooperatives to perform market-wide services; therefore they should be paid nothing, regardless of the fact that they actually performed such services for the past eleven years.
34
(3) It is evil and illegal to pay cooperatives for working to benefit a whole group of which they are a part.
35
First. If these payments were mere gratuities as the District Court held and as intimated by the majority, I too would hold them illegal. However, they cannot be considered gratuities because administrative findings of fact and the whole record show precisely the contrary. I cannot agree that it is for this Court to redetermine facts found by the Secretary after at least three exhaustive public hearings16—findings which were not even challenged by the parties. The administrative history of the Marketing Act shows conclusively that at the time of the first of these hearings in 1941 the right of cooperatives to receive payments for market-wide services was well established. From the evidence before the Secretary at this first hearing he concluded that the payments to cooperatives were justified and would tend to effectuate the purposes of the Act. 6 Fed.Reg. 3762, 7 CFR, 1941 Supp., § 904.0. In 1943 another public hearing was held at which an unsuccessful attempt was made to eliminate cooperative payment provisions from the order. One of the findings resulting from this hearing is as follows: 'The present plan of payments to cooperatives, which became effective August 1, 1941, was based on the consideration that to achieve the benefits to all producers which the order is designed to provide two types of activity by producers' cooperative marketing organizations are desirable: (1) presentation of evidence at hearings concerning the needs of producers with respect to prices for milk and differentials to reflect handling costs to furnish an adequate basis for constructive amendments to the order, and (2) assumption of responsibility for a reserve of milk to meet the irregular needs of distributors which is essential in a market which provides market-wide equalization among all producers of the total value of the milk. * * * From these considerations it was concluded that provision for payments to cooperative associations is considered necessary to equitably apportion the total value of milk among producers. The testimony in support of the proposal to completely eliminate this feature of the order does not show that these considerations were substantially erroneous.' 9 Fed.Reg. 3057, 3059. In 1947 still another unsuccessful attempt was made to eliminate these provisions. At this public hearing the Secretary expressly reaffirmed the prior crucial findings on which the order rests. 12 Fed.Reg. 4921, 4928. It is the provisions of this 1947 order now held invalid.
36
There was an abundance of evidence to support the Secretary's findings that the cooperatives in the Boston area were equipped to and did constantly provide substantial services to help sustain the market price of milk and to stabilize its distribution. Evidence showed that New England cooperatives maintained expensive manufacturing equipment to take care of surplus milk; that most of the surplus milk was concentrated in cooperative plants and that even proprietary handlers normally depended on cooperatives in time of short production. There was testimony that all these activities imposed huge financial burdens on cooperative associations and that unless non-members were made to bear part of these large costs, cooperating farmers, who saved the market from the chaos of a fluctuating milk supply, would actually get less net amounts for their milk than did the non-members who merely reaped the harvest sown by others.
37
The foregoing suggests but a very minor part of the evidence on which the Secretary found that the cooperative payment provisions were consistent with the Act's terms and necessary to effectuate the order's other provisions designed to maintain a smoothly functioning market. The Court of Appeals agreed with the Secretary as to the value of cooperative services. 87 U.S.App. D.C. 388, 392, 399, 185 F.2d 871, 875, 882. Its opinion not only conceded that 'there was substantial evidence that these services were rendered' but emphatically declared 'There is no doubt that these services are pronounced aids to all participants in the marketing area—producers, handlers and consumers.' In fact the Court of Appeals rather impatiently rejected the 'gratuity' theory of the payments by declaring that the record made the market-wide aid of cooperatives 'so clear that it serves no purpose to describe the helpful effects in detail.' This Court now resurrects this rejected theory by implying that the cooperative payments are mere gifts, thereby upsetting the Secretary's findings while asserting that it is indulging in pure statutory construction.17 This, of course, is the safest way to upset findings supported as these are by substantial evidence.
38
Second. The majority seems to imply that even if the cooperatives do render valuable market-wide services they ought not to be paid. This is because the Court, reading the order with punctilious nicety, finds that it lacks words expressly compelling cooperatives to render the precise services for which they are paid. I fail too see why cooperatives should not be paid for work they actually do, but in any event I read the order as requiring that those services be performed.
39
The public hearings held in connection with this order resulted in findings that cooperatives should be paid for rendering two broad types of market services. Most importantly, they were to be paid for the 'assumption of responsibility for a reserve of milk to meet the irregular needs of distributors.' 9 Fed.Reg. 3059. Section 904.10(b)(2) of the order specifies the amounts to be paid cooperatives for meeting this responsibility. This section by its very terms requires that before they get their pay cooperatives must meet their responsibility by running plants which sell or process milk. It does so in the following language: 'Each qualified association shall be entitled to payment at the rate of 2 cents per hundred-weight on milk received from producers at a plant operated by that association.' Neither the New York order nor any other order could possibly contain a more compelling requirement for the cooperatives to perform these market services than does this order—namely, no work, no pay.18
40
Section 904.10(b)(1) specifies the amounts to be paid cooperatives for their work in bringing about better milk prices for all farmers. This is the second broad type of service which the Secretary found cooperatives should be paid for. In order to be entitled to receive any payment whatsoever for this service, a cooperative must not only comply with the provisions of the Capper-Volstead Act, but also must 'collaborate(s) with similar associations in activities incident to the maintenance and strengthening of collective bargaining by producers and the operation of a plan of uniform pricing of milk to handlers.'19 If a cooperative does the things required by the Capper-Volstead Act and the last-mentioned section of the order, it is bound to be working to bring about better milk prices for all dairy farmers in the area.
41
After public hearing, the administrator of this Act has found on three separate occasions that cooperatives expended their time and money in performing these market-wide services. I am not sure why the majority forbids the payments. I hope it is not on the theory that the Secretary's supposed lack of linguistic skill must deprive cooperatives of pay for the work they did during the past eleven years. Whether this is the theory, one cannot be sure.
42
Third. The majority states that there is somewhat of an 'incongruity' in allowing cooperatives to be paid for 'vigorously prosecuting their own interests,' leaving the inference that there is something inherently evil and illegal in such payments. I do not see why. It seems more incongruous and wrong to me to let non-members get something for nothing and at the sole expense of the cooperating farmers. There is certainly no conflict of interest among farmers in connection with the obtaining of a higher price for the milk of all. The payments were made to achieve this end. Furthermore, I doubt if the majority would want to hold that Congress is barred from taking advantage of the belief of many that government regulation can be most effective where the fullest possible use is made of the aid and helpful services of those who are being regulated. I find it impossible to believe that Congress intended to compel the Secretary to hire more regular, all-time government employees to perform, and in many instances to duplicate, work that could be best and perhaps least irritatingly performed by farmer-owned and farmercontrolled associations.20 To the contrary, the controlling law expressly directs the Secretary to use cooperatives where he can.21 That it is evil for the Secretary to pay cooperatives for market services seems an unduly fastidious concept.22
43
Finally, I do not agree with the majority that statutory authority for these payments is lacking. The Act first authorizes the Secretary to take certain specified actions designed to set up a well-functioning Government-controlled milk-market system. To avoid the inevitable rigidity of its expressly defined authorizations Congress went further and authorized the Secretary to provide for additional market mechanisms 'Incidental to, and not inconsistent with, the terms and conditions specified * * * and necessary to effectuate the other provisions of such order.' 49 Stat. 750, 757, 7 U.S.C. § 608c(7)(D), 7 U.S.C.A. § 608c(7)(D). The key words in this section, referred to by the Court of Appeals as 'the measuring standard' are 'incidental,' 'not inconsistent,' and 'necessary.' Largely relying on their selections of abstract word definitions, the District Court and the Court of Appeals held that the Secretary's order was forbidden by each of these key words. This Court clearly agrees that the order for payment is not 'incidental' and is 'inconsistent' with the Act's terms. However, it meticulously avoids any reliance on the word 'necessary.'
44
A. Necessary.—The Secretary concluded that cooperative payments were 'necessary' to effectuate the other terms of his order. An overwhelming majority of the farmers affected by the payment provision voted in favor of them. The administrative history of the Act shows that the payments have made a substantial contribution to the smooth operation of the government's program. Congress itself has ratified these very provisions now in issue. All of this is enough for me; I would hold that the provisions are 'necessary' within the meaning of the Act.
45
B. Incidental.—The majority holds that these payments are not 'incidental' to the other terms of the order. This holding seems to be based on the idea that the payment provisions are too important to be merely 'incidental.'23 This idea is in marked contrast to the Court's previous statement that 'the payments to cooperatives have in each year constituted no more than a fraction of one percent of the total value of milk marketed in the area.' I do not doubt that these payments are of considerable importance in carrying out the basic market control system set up by the Act. But I deny that they are such independent ends in themselves that they are something more than an 'incidental' part of the program they were designed to serve. Clearly the payment provisions are auxiliary to the main purpose of the Act and its market system. Consequently, the Court refuses to give that 'considerable flexibility' which we have previously said the Secretary should have 'to include provisions auxiliary to those definitely specified.' United States v. Rock Royal Co-op., supra, 307 U.S. 575, 576, 59 S.Ct. 993, 1014.
46
C. Inconsistent.—The Court's holding that the cooperative payments are 'inconsistent' with the Act is based on the notion that the order destroys uniformity of prices received by cooperative members and non-members to the detriment of non-members. The Court's holding in its regard rests in part on its unsupported and unsupportable findings that 'receipts of nonmembers resulting from delivery of a given quantity of milk are smaller than those of the associations and their members. This is true because nonmembers are paid only the blended price while members receive, through their associations, the disputed payments in addition to the blended price.' The crucial error of these assumptions or findings of fact, whichever they are, is the Court's assertion that cooperative service payments 'redound to members individually.' There is not only an absence of evidence to support this assertion, but it is contrary to the known facts of the way cooperatives work. The only possible support for such an extraordinary inference is by a renewed adoption of the theory that these payments are gratuities, a theory the Court of Appeals emphatically rejected. But this record actually shows that it costs the cooperatives more to perform the services than they are paid. It also shows that cooperatives are compelled to deduct the complete cost of these services long before the member farmers are paid for their milk. The result is that but for these payments the cooperative members are bound to get less than the blended price for their milk while non-members get the blended price. The very reason the Secretary authorized these payments who to insure so far as possible that non-members should not get more for their milk than cooperating farmers do. It is therefore the Court's action today, not the Secretary's order, that prevents uniformity of price in the Boston area.
47
In striking down these provisions of the Secretary's order, the Court has departed from many principles it has previously announced in connection with its supervision over administrative agents. Under these principles, the Court would refrain from setting aside administrative findings of fact when supported by substantial evidence;24 we would give weight to the interpretation of a statute by its administrators;25 when administrators have interpreted broad statutory terms, such as here involved, we would recognize that it is our duty to accept this interpretation even though it was not 'the only reasonable one' or the one 'we would have reached had the question arisen in the first instance in judicial proceedings.' Unemployment Compensation Comm. of Territory of Alaska v. Aragan, 329 U.S. 143, 153, 67 S.Ct. 245, 250, 91 L.Ed. 136. Only a short while ago in a Labor Board case this Court said: 'Not only are the findings of the Board conclusive with respect to questions of fact in this field when supported by substantial evidence on the record as a whole, but the Board's interpretation of the Act and the Board's application of it in doubtful situations are entitled to weight.' National Labor Relations Board v. Denver Bldg. and Construction Trades Council, 341 U.S. 675, 691, 692, 71 S.Ct. 943, 952, 953, 95 L.Ed. 1284. True, this was said with reference to a Labor Board case under the Taft-Hartley Act, 29 U.S.C.A. § 141 et seq., but findings and interpretations of the Secretary of Agriculture should stand on no lower level.
48
I dissent.
1
50 Stat. 246, as amended, 7 U.S.C. § 601 et seq., 7 U.S.C.A. § 601 et seq. The Act of 1937 reenacted and amended provisions of the Agricultural Adjustment Act of 1933, 48 Stat. 31, as amended.
2
7 C.F.R. §§ 904.1—904.110.
3
Section 904.8(b) of the Order requires the Market Administrator, in computing the blended price, to deduct, among other items, the total amount of cooperative payments required by § 904.10(b), which provides:
'(b) Cooperative payments. On or before the 25th day after the end of each month, each qualified association shall be entitled to receive a cooperative payment from the funds provided by handlers' payments to the market administrator pursuant to § 904.9. The payment shall be made under the conditions and at the rates specified in this paragraph, and shall be subject to verification of the receipts and other items upon which such payment is based.
'(1) Each qualified association shall be entitled to payment at the rate of 1 cent per hundredweight on the milk which its producer members deliver to the plant of a handler other than a qualified association; except on milk delivered by a producer who is also a member of another qualified association, and on milk delivered to a handler who fails to make applicable payments pursuant to § 904.9(b)(2) and § 904.11 within 10 days after the end of the month in which he is required to do so. If the handler is required by paragraph (e) of this section to make deductions from members of the association at a rate lower than 1 cent per hundredweight, the payment pursuant to this subparagraph shall be at such lower rate.
'(2) Each qualified association shall be entitled to payment at the rate of 2 cents per hundredweight on milk received from producers at a plant operated by that association.' 7 C.F.R. § 904.10(b).
4
The total amount thus paid cooperatives in the Boston area since 1941 is $1,521,028; in addition, more than $400,000 has been deposited in a special account to await the final result of this litigation. However, the payments to cooperatives have in each year constituted no more than a fraction of one percent of the total value of milk marketed in the area.
5
See e.g., R. 60, 70—75.
6
§ 8c(5), note I, supra:
'(5) In the case of milk and its products, orders issued pursuant to this section shall contain one or more of the following terms and conditions, and (except as provided in subsection (7)) no others:
'(A) Classifying milk in accordance with the form in which or the purpose for which it is used, and fixing, or providing a method for fixing, minimum prices for each such use classification which all handlers shall pay, and the time when payments shall be made, for milk purchased from producers or associations of producers. Such prices shall be uniform as to all handlers, subject only to adjustments for (1) volume, market, and production differentials customarily applied by the handlers subject to such order, (2) the grade or quality of the milk purchased, and (3) the locations at which delivery of such milk, or any use classification thereof, is made to such handlers.
'(B) Providing:
'(i) for the payment to all producers and associations of producers delivering milk to the same handler of uniform prices for all milk delivered by them: Peovided, That, except in the case of orders covering milk products only, such provision is approved or favored by at least three-fourths of the producers who, during a representative period determined by the Secretary of Agriculture, have been engaged in the production for market of milk covered in such order or by producers who, during such representative period, have produced at least three-fourths of the volume of such milk produced for market during such period;
the approval required hereunder shall be separate and apart from any other approval or disapproval provided for by this section; or
'(ii) for the payment to all producers and associations of producers delivering milk to all handlers of uniform prices for all milk so delivered, irrespective of the uses made of such milk by the individual handler to whom it is delivered; subject, in either case, only to adjustments for (a) volume, market, and production differentials customarily applied by the handlers subject to such order, (b) the grade or quality of the milk delivered, (c) the locations at which delivery of such milk is made, and (d) a further adjustment, equitably to apportion the total value of the milk purchased by any handler, or by all handlers, among producers and associations of producers, on the basis of their marketings of milk during a representative period of time.
'(C) In order to accomplish the purposes set forth in paragraphs (A) and (B) of this subsection (5), providing a method for making adjustments in payments, as among handlers (including producers who are also handlers), to the end that the total sums paid by each handler shall equal the value of the milk purchased by him at the prices fixed in accordance with paragraph (A) hereof.
'(D) Providing that, in the case of all milk purchased by handlers from any producer who did not regularly sell milk during a period of 30 days next preceding the effective date of such order for consumption in the area covered thereby, payments to such producer, for the period beginning with the first regular delivery by such producer and continuing until the end of two full calendar months following the first day of the next succeeding calendar month, shall be made at the price for the lowest use classification specified in such order, subject to the adjustments specified in paragraph (B) of this subsection (5).
'(E) Providing (i) except as to producers for whom such services are being rendered by a cooperative marketing association, qualified as provided in paragraph (F) of this subsection (5), for market information to producers and for the verification of weights, sampling, and testing of milk purchased from producers, and for making appropriate deductions therefor from payments to producers, and (ii) for assurance of, and security for, the payment by handlers for milk purchased.
'(F) Nothing contained in this subsection (5) is intended or shall be construed to prevent a cooperative marketing association qualified under the provisions of the Act of Congress of February 18, 1922, as amended, known as the 'Capper-Volstead Act', engaged in making collective sales or marketing of milk or its products for the producers thereof, from blending the net proceeds of all of its sales in all markets in all use classifications, and making distribution thereof to its producers in accordance with the contract between the association and its producers: Provided, That it shall not sell milk or its products to any handler for use or consumption in any market at prices less than the prices fixed pursuant to paragraph (A) of this subsection (5) for such milk.
'(G) No marketing agreement or order applicable to milk and its products in any marketing area shall prohibit or in any manner limit, in the case of the products of milk, the marketing in that area of any milk or product thereof produced in any production area in the United States.'
7
§ 8c(7)(D), note 1, supra. Subsection 7 authorizes certain general terms for all marketing orders, including both those relating to milk and its products and those relating to other commodities. The terms thus authorized, aside from paragraph (D), prohibit unfair competition, provide for filing of sales prices by handlers, and provide for selection of an agency to implement the order.
8
82 S.Supp. 614, 618; 87 U.S.App.D.C. 388, 397—399, 185 F.2d 871, 880—882.
9
7 C.F.R. § 904.10(a):
'(a) Application and qualification for cooperative payments. Any cooperative association of producers duly organized under the laws of any state may apply to the Secretary for a determination that it is qualified to receive cooperative payments in accordance with the provisions of this section. Upon notice of the filing of such an application, the market administrator shall set aside for each month, from the funds provided by handlers' payments to the market administrator pursuant to § 904.9, such amount as he estimates is ample to make payment to the applicant, and hold it in reserve until the Secretary has ruled upon the application. The applicant association shall be considered to be a qualified association entitled to receive such payments from the date fixed by the Secretary, if he determines that it meets all of the following requirements.
'(1) It conforms to the requirements relating to character of organization, voting, dividend payments, and dealing in products of nonmembers, which are set forth in the Capper-Volstead Act, 7 U.S.C.A. §§ 291, 292, and in the state laws under which the association is organized.
'(2) It operates as a responsible producer-controlled marketing association exercising full authority in the sale of the milk of its members.
'(3) It systematically checks the weights and tests of milk which its members deliver to plants not operated by the association.
'(4) It guarantees payment to its members for milk delivered to plants not operated by the association.
'(5) It maintains, either individually or together with other qualified associations, a competent staff for dealing with marketing problems and for providing information to its members.
'(6) It constantly maintains close working relationships with its members.
'(7) It collaborates with similar associations in activities incident to the maintenance and strengthening of collective bargaining by producers and the operation of a plan of uniform pricing of milk to handlers.
'(8) It is in compliance with all applicable provisions of this subpart.'
10
Ibid.
11
In 1939 (no later statistics are available in the record), there were 21 plants in the Boston area which were equipped for manufacturing milk powder, condensed milk or butter, of which 13 were cooperative and 8 proprietary. The co-operative plants handled 60.2 percent of the surplus milk that year. R. 66 and 68.
12
Contrast the New York Order, providing for comparable payments, at various rates, to cooperatives. That Order expressly requires that an association, to qualify for any such payments, must arrange for and supply 'in times of short supply, Class I milk to the marketing area,' and must secure 'utilization of milk, in times of long supply, in a manner to assure the greatest possible return to all producers.' 7 C.F.R., 1950 Cum.Supp., § 927.9(f). To receive the highest rate of payments under that Order, in certain circumstances a cooperative must 'in addition to the other qualifications * * * (be) determined by the Secretary to have sufficient plant capacity to receive all the milk of producers who are members and to be willing and able to receive milk from producers not members.' Id., at § 927.9(f)(3). As proposed at one point in the hearings, the Boston Order would have contained requirements like those of the New York Order. R. 233. Their omission in the Order, as finally issued, presumably was deliberate. In fact, the Secretary admits that many of the cooperatives in the Boston area were unwilling or unable to perform services such as those required by the New York Order. R. 24—25 and 70.
13
§ 8c(7)(D), note 1, supra. Subsection (6) has no application to orders dealing with milk.
14
§ 8c(7)(D), note 1, supra.
15
§ 10(b)(1), note 1, supra.
16
The statutory provisions setting forth the terms which might be included in marketing orders were first enacted in an amendment to the Agricultural Adjustment Act in 1935. 49 Stat. 753. This enactment occurred shortly after the decisions of this Court in Panama Refining Co. v. Ryan, 1935, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446, and Schechter Poultry Corp. v. United States, 1935, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570, placing limitations on the delegation of rule-making authority to administrative agencies. With these cases specifically in mind, Congress set forth with deliberate particularity and completeness the terms which the Secretary might include in marketing orders. H.R.Rep.No.1241, 74th Cong., 1st Sess. 8; S.Rep.No.1011, 74th Cong., 1st Sess. 8.
17
S. 3426, 76th Cong., 3d Sess.; S.Rep.No.1719, 76th Cong., 3d Sess. S. 3426 would have clearly authorized payments such as those challenged here. It passed the Senate, but went no further. As to the inconclusive nature of the Bill and its history, see the opinion of the Court of Appeals, 87 U.S.App.D.C. 388, 400, 185 F.2d 871, 883.
18
'Nothing in this Act shall be construed as invalidating any marketing agreement, license, or order, or any regulation relating to, or any provision of, or any act of the Secretary of Agriculture in connection with, any such agreement, license, or order which has been executed, issued, approved, or done under the Agricultural Adjustment Act, or any amendment thereof, but such marketing agreements, licenses, orders, regulations, provisions, and acts are hereby expressly ratified, legalized, and confirmed.' 50 Stat. 246, 249, 7 U.S.C.A. § 672.
19
Of thirty-nine currently outstanding milk marketing orders, only four contain provisions of the general nature of those in question. One of these is the Boston Order involved here; another is the New York Order, as to which see note 12, supra.
20
1 Cir., 1939, 108 F.2d 342, 345.
1
In addition, about $400,000 has been paid into court under an impounding order entered by the District Court in 1949.
2
In 1941 farmers in the Boston milk area were given an opportunity to express their approval or disapproval of the order. They voted as follows:
3
'The Secretary, in the administration of this title, shall accord such recognition and encouragement to producer owned and producer-controlled cooperative associations as will be in harmony with the policy toward cooperative associations set forth in existing Acts of Congress, and as will tend to promote efficient methods of marketing and distribution.' 49 Stat. 750, 767, 7 U.S.C.A. § 610(b)(1).
4
The majority apparently desires to leave an inference that some of the other orders might survive legal challenges. I cannot believe that the majority is today sustaining these other orders not now here against attacks on grounds not yet argued. In each market area the services for which cooperatives are paid are of the same nature. Any difference in language used by the Secretary in formulating the orders is of no real significance, and I do not believe any crucial distinctions could possibly be drawn between the various orders except by arbitrary fiat.
5
42 Stat. 388, 7 U.S.C. § 291, 7 U.S.C.A. § 291. This Act gave special consideration and exemptions to cooperative associations of farmers.
6
46 Stat. 11, 12 U.S.C. § 1141, 12 U.S.C.A. § 1141. A declared policy of this Act was to encourage the organization and operation of farmer cooperative associations. The Act also provided for making loans to cooperatives, to aid them in taking care of the surplus crops, and to assist the cooperatives in educating the producers of farm products in the advantages of cooperative marketing.
7
See Nebbia v. People of State of New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940.
8
See H.R.Doc.No.451, 74th Cong., 2d Sess. 47—48.
9
See, e.g., Twin City (St. Paul and Minneapolis) Area Milk License No. 5, Ex. A, Arts. II and III, issued August 29, 1933 and terminated February 16, 1934; and License No. 32, Ex. A, § II, issued February 12, 1934 and terminated April 18, 1944.
10
See, e.g., Baltimore Production Area Milk License No. 6, Art. III, § 5, issued September 25, 1933. Detroit Milk Shed Milk License No. 4, Art. III, § 4, issued August 23, 1933. Evansville, Indiana, Milk Shed License No. 12, Art. III, § 4, issued October 19, 1933. Philadelphia Milk Shed License No. 3, Art. III, App. I, § 4, issued August 21, 1933.
11
H.R.Rep.No.1241, 74th Cong., 1st Sess. 9.
12
Supra, p. 13.
13
H.R.Rep.No.468, 75th Cong., 1st Sess. 2.
14
'Any program in effect under the Agricultural Adjustment Act, as reenacted and amended by this Act, on the effective date of section 302 of the Agricultural Act of 1948 shall continue in effect without the necessity for any amendatory action relative to such program, but any such program shall be continued in operation by the Secretary of Agriculture only to establish and maintain such orderly marketing conditions as will tend to effectuate the declared purpose set out in section 2 or 8c(18) of the Agricultural Adjustment Act, as reenacted and amended by this Act.' Act of July 3, 1948, 62 Stat. 1247, 1258, 7 U.S.C. (Supp. IV) § 672(b), 7 U.S.C.A. § 672(b).
15
This appears to have been the view of the District Court. 82 F.Supp. 614.
16
Public hearings were held in 1940, 1941, 1942, 1943 and 1947. The 1940 and 1941 hearing records are before us as an exhibit. The other hearing records are available; all the findings resulting from all these hearings have been published in the Federal Register as the law requires. And if the evidence before the Secretary were not available, his findings would carry a presumption of a state of facts justifying his action. United States v. Rock Royal Co-op., 307 U.S. 533, 567—568, 59 S.Ct. 993, 1009, 1010, 83 L.Ed. 1446.
17
The majority disclaims any challenge to the adequacy of the evidence to support the Secretary's findings. In the succeeding paragraph the majority resorts to affidavits filed in the trial court in an attempt to show that the purpose of these payment provisions was to subsidize inefficient and overcapitalized cooperative plants. The Secretary had found the payments were bona fide compensation for work performed. Thus the Secretary found one fact; the Court relies on a court affidavit to find a contrary fact. I think the affidavit does not support this Court's finding. Moreover, the administrative findings should be tested by evidence the administrator heard, not by de novo proceedings in a reviewing court.
18
See n. 4, supra.
19
7 C.F.R., 1947 Supp., § 904.10(a)(1)(7).
20
However, the contrary view of the Court of Appeals appears to have been a basis for its invalidation of the other for it said: 'It is argued that it would take a decided increase in the present staff of the administrator to provide these services and that such increase would be expensive. This is no answer. The Act makes it the duty of the administrator to do this. He cannot farm out these duties to one class of producers at the expense of another class, for this would violate the effect of uniformity of price required in subsections 608c(5)(B)(i) and (ii) and be 'inconsistent' therewith.' 185 F.2d 871, 881.
21
See n. 3, supra.
22
I have not discussed above a fourth ground upon which the Court may possibly rely for its holding. There seems to be a certain flavor in the majority opinion to the effect that cooperatives should not be paid for maintaining surplus milk reserves since corresponding payments are not made to proprietary milk handlers. However, this must be mere coloration, for the record shows, by the testimony of the proprietary interests themselves, that they will not work to dispose of surplus milk at the high price which only fluid milk brings because they are unwilling to deal with their competitors. If the proprietary interests should decide to cooperate with their competitors in the future so that all farmers can receive higher prices for their milk, the Secretary and the farmers will no doubt be glad to pay them for doing so. At any rate, I do not believe the majority is proceeding on the assumption that because one group has been wronged, the Court must insure that all other groups must be similarly wronged.
23
The majority also states that these payments cannot be 'incidental' because they are 'inconsistent' with other provisions of the Act. Maybe these two words are synonyms, but I had not thought so. At any rate I shall later state reasons why these payments are wholly consistent with the Act and the market program set up under it.
24
See Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456.
25
Gray v. Powell, 314 U.S. 402, 62 S.Ct. 326, 86 L.Ed. 301.
| 89
|
342 U.S. 517
72 S.Ct. 432
96 L.Ed. 540
GRAY et al.v.BOARD OF TRUSTEES OF UNIVERSITY OF TENNESSEE et al. Ex parte GRAY et al.
No. 120 and No. 159 Misc.
Argued Jan. 9—10, 1952.
Decided March 3, 1952.
Mr. Robert L. Carter, Washington, D.C., for appellants and petitioners.
Mr. John J. Hooker, Nashville, Tenn., for Board of Trustees of University of Tennessee and others.
PER CURIAM.
1
Appellants, on behalf of themselves and other Negroes 'similarly situated,' sued in the District Court to enjoin appellees from alleged violations of the Fourteenth Amendment in refusing to admit Negroes to the University of Tennessee. A three-judge court, convened at appellants' request, held that this case was not within the jurisdiction of a three-judge court under 28 U.S.C. (Supp. IV) § 2281, 28 U.S.C.A. § 2281, and ordered that the case proceed before a single district judge. D.C., 100 F.Supp. 113. The single judge held that appellants were entitled to relief but did not enter an order. D.C., 97 F.Supp. 463.
2
Appellants contend that only a court of three judges has jurisdiction over the cause. No. 120 is an appeal from the order dissolving the three-judge court brought directly to this Court under 28 U.S.C. (Supp. IV) § 1253, 28 U.S.C.A. § 1253. We set the appeal down for argument, postponing consideration of jurisdictional questions. In No. 159 Misc., appellants asked, in the alternative, that we issue a writ of mandamus to vacate the order dissolving the three-judge court. We issued a rule to show cause why the petition for mandamus should not be granted, 342 U.S. 846, 72 S.Ct. 84, and, upon the filing of a response to the rule, set the petition down for argument with the appeal.
3
At the argument, counsel for appellees stated that appellants would be admitted to the University of Tennessee as requested. Thereafter, appellants filed a motion stating that appellant Gray has been admitted to the University and that the other appellants were, because of changed circumstances, unable to avail themselves of the opportunity at present. Appellants moved this Court to vacate the order dissolving the three-judge court and to remand the case to that court for further proceedings. Since appellants' requests for admission to the University of Tennessee have been granted and since there is no suggestion that any person 'similarly situated' will not be afforded similar treatment, appellants' motion is denied and the judgments below are vacated and the District Court is directed to dismiss the action upon the ground that the cause is moot.
4
It is so ordered.
5
Judgment vacated with directions.
| 89
|
342 U.S. 415
72 S.Ct. 428
96 L.Ed. 458
MULLANEY, Commissioner of Taxation for Territory of Alaska,v.ANDERSON et al.
No. 329.
Argued Jan. 7, 8, 1952.
Decided March 3, 1952.
Mr. J. Gerald Williams, Juneau, Alaska, for petitioner.
Mr. Carl B. Luckerath, Seattle, Wash., for respondents.
Mr. Justice FRANKFURTER delivered the opinion of the Court.
1
The Territorial Legislature of Alaska provided for the licensing of commercial fishermen in territorial waters, imposing a $5 license fee on resident fishermen and a $50 fee on nonresidents. Alaska Laws, 1949, c. 66. The Alaska Fishermen's Union and its Secretary-Treasurer, on behalf of some 3,200 nonresident union members, brought this action in the District Court of the Territory to enjoin the Tax Commissioner from collecting the license fee from nonresidents. Plaintiffs contended that the Territorial Legislature was without power under the Organic Act to pass the statute, that the exaction complained of unconstitutionally burdens interstate commerce, and that it is an abridgment of the privileges and immunities of citizens of other States forbidden by Art. IV, § 2 of the Constitution and by the Fourteenth Amendment. After trial, the District Court concluded that the differential between resident and nonresident fees rests on substantial differences bearing a fair and reasonable relation to the objects of the legislation, and upheld the statute. 91 F.Supp. 907. The Court of Appeals for the Ninth Circuit reversed, one judge dissenting. 191 F.2d 123. We brought the case here for clarification of the limits on the power of the Territorial Legislature. 342 U.S. 865, 72 S.Ct. 111.
2
Here, for the first time, petitioner questioned the standing of respondent union and its Secretary-Treasurer to maintain this suit. To remove the matter from controversy, respondent moved for leave to add as parties plaintiff two of its members, nonresidents of Alaska and subject to the statutory exaction. Rule 21 of the Federal Rules of Civil Procedure, 28 U.S.C.A., authorizes the addition of parties 'by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just.' The original plaintiffs alleged without contradiction that they were authorized by the nonresident union members to bring this action in their behalf. This claim of authority is now confirmed in the petition supporting the motion to add the member-fishermen as plaintiffs. To grant the motion merely puts the principal, the real party in interest, in the position of his avowed agent. The addition of these two parties plaintiff can in no wise embarrass the defendant. Nor would their earlier joinder have in any way affected the course of the litigation. To dismiss the present petition and require the new plaintiffs to start over in the District Court would entail needless waste and runs counter to effective judicial administration—the more so since, with the silent concurrence of the defendant, the original plaintiffs were deemed proper parties below. Rule 21 will rarely come into play at this stage of a litigation. We grant the motion in view of the special circumstances before us.
3
In Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460, the Court held that Art. IV, § 2 of the Constitution would bar any State from imposing the license fee here attacked. In that case it was said: 'The State is not without power, for example, to restrict the type of equipment used in its fisheries, to graduate license fees according to the size of the boats, or even to charge non-residents a differential which would merely compensate the State for any added enforcement burden they may impose or for any conservation expenditures from taxes which only residents pay.' 334 U.S. at pages 398—399, 68 S.Ct. at page 1163. The challenged discrimination does not come within any of these exceptions. The Tax Commissioner relied on the higher cost of enforcing the license law against nonresident fishermen to justify the difference in fees, and the District Court found that 90% of the cost of enforcement was incurred in collecting the fees from nonresidents. But there is no warrant for the assumption that the differential in fees bears any relation to this difference in cost, nothing to indicate that it 'would merely compensate' for the added enforcement burden. Indeed the Tax Commissioner and his Special Deputy Enforcement Officer specifically disclaimed any knowledge of the dollar cost of enforcement. What evidence we have negatives the idea of any such relation, for the total amount payable by nonresident fishermen in 1949—1950, in excess of what they would have been charged if they had been residents, may easily have exceeded the entire amount abailable for administration of the Tax Commissioner's office in that year.1 Constitutional issues affecting taxation do not turn on even approximate mathematical determinations. But something more is required than bald assertion to establish a reasonable relation between the higher fees and the higher cost to the Territory. We do not remotely imply that the burden is on the taxing authorities to sustain the constitutionality of a tax. But where the power to tax is not unlimited, validity is not established by the mere imposition of a tax. In this case, respondents negatived other possible bases raised by the pleadings for the discrimination, and the one relied on by the Commissioner, higher enforcement costs, was one as to which all the facts were in his possession. Respondents sought to elicit these facts by interrogatories and cross-examination without avail. Under the circumstances we think they discharged their burden in attacking the statute.
4
But, it is urged, Alaska is not a State but a Territory to which the controlling constitutional limitations laid down in Toomer v. Witsell, supra, are not applicable. Haavik v. Alaska Packers' Ass'n, 263 U.S. 510, 44 S.Ct. 177, 68 L.Ed. 414, is invoked for that contention. We have no occasion here to reconsider the constitutional holding of that case, namely, that it is within the power of Congress to relieve the Territory of some of the restrictions applicable to a State. But that in fact was the real issue to which the Court's attention was directed in the Haavik case. It was assumed that if Congress had the power it was exercised by the Organic Act. On fuller consideration, in light of the briefs and record in that case and the implications of subsequent Congressional enactments,2 we cannot so read the Act. Section 3 provides 'The Constitution of the United States, and all the laws thereof which are not locally inapplicable, shall have the same force and effect within the said territory as elsewhere in the United States.' 37 Stat. 512, 48 U.S.C. § 23, 48 U.S.C.A. § 23. And § 9 extends the legislative power of the Territory to 'all rightful subjects of legislation not inconsistent with the Constitution and laws of the United States, * * *.' 37 Stat. 512, 514, 48 U.S.C. § 77, 48 U.S.C.A. § 77. In the light of these sections, we cannot presume that Congress authorized the Territorial Legislature to treat citizens of States the way States cannot treat citizens of sister States. Only the clearest expression of Congressional intent could induce such a result. It is not present. If anything, Congressional pronouncements since Haavik concerning the very subject matter here in issue fortify the conclusion that the Territorial Legislature, particularly in the regulation of fisheries, was granted no greater power over citizens of other States than a State legislature has. The judgment must be affirmed.
5
Affirmed.
6
The CHIEF JUSTICE, Mr. Justice CLARK, and Mr. Justice MINTON would reverse for the reasons given in points A and B of the dissenting opinion of Chief Judge Denman, 191 F.2d 123, 134—137.
1
The appropriation for the office of Tax Commissioner for the biennium beginning April 1, 1949, was $500,000. Alaska Laws, 1949, c. 114. The District Court found that there were approximately 3,200 nonresident fishermen who were members of plaintiff union, and the court below added that it might be inferred from the record that an equal number of nonresident fishermen were not members of this union. 191 F.2d at 134. The $45 differential paid by nonresidents multiplied by the 6,400 nonresident fishermen amounts to $288,000, well over half the Commissioner's biennial appropriation.
2
After the decision in the Haavik case Congress passed the White Act, 43 Stat. 464, 48 U.S.C. §§ 221—247, 48 U.S.C.A §§ 221 247, comprehensively regulating 'the fisheries of the United States in all waters of Alaska' and delegating authority to the Secretary of Commerce (now to the Secretary of Interior) to administer the law. That Act provided '* * * no exclusive or several right of fishery shall be granted (in reserved fishing areas established by the Secretary in Alaskan waters), nor shall any citizen of the United States be denied the right to take, prepare, cure, or preserve fish or shellfish in any area of the waters of Alaska where fishing is permitted by the Secretary of the Interior.' 43 Stat. 464, as amended, 48 U.S.C. § 222, 48 U.S.C.A. § 222. But see 43 Stat. 464, 467, 48 U.S.C. § 228, 48 U.S.C.A. § 228, which provides that nothing in the Act 'shall abrogate or curtail the powers granted the Territorial Legislature of Alaska to impose taxes or licenses * * *.'
In 1947, Congress amended the Organic Act of Puerto Rico to provide: 'The rights, privileges, and immunities of citizens of the United States shall be respected in Puerto Rico to the same extent as though Puerto Rico were a State of the Union and subject to the provisions of paragraph 1 of section 2 of article IV of the Constitution of the United States.' 61 Stat. 772, 48 U.S.C. § 737, 48 U.S.C.A. § 737. In his statement explaining the bill, Senator Butler, the manager of the bill, said, 'Congress has not expressly extended the Constitution to Puerto Rico, as it did in the case of Alaska and Hawaii, and the committee considered it advisable to bring Puerto Rico expressly within the operation of the comity clause so as to leave no doubt that there may be no discrimination against citizens of the United States who are not residents of Puerto Rico.' 93 Cong.Rec. 10402. The report of the Senate Committee on Public Lands expressed dissatisfaction that 'Legislation in Puerto Rico has discriminated against nonresident American citizens.' S.Rep.No.422, 80th Cong., 1st Sess. 4.
| 78
|
342 U.S. 580
72 S.Ct. 512
96 L.Ed. 586
HARISIADESv.SHAUGHNESSY, District Director of Immigration & Naturalization of Port of NewYork. MASCITTI v. McGRATH, Atty. Gen. of United States. COLEMAN v. McGRATH, Atty. Gen. of United States, et al.
Nos. 43, 206, 264.
Argued Dec. 5, 1951.
Decided March 10, 1952.
Rehearing Denied April 28, 1952.
See 343 U.S. 936, 72 S.Ct. 767.
Mr. Richard F. Watt, Chicago, Ill., for petitioner in No. 43.
Mr. Jack Wasserman, Washington, D.C., for appellant in No. 206.
Mr. David Rein, Washington, D.C., for appellant in No. 264.
Mr. Robert L. Stern, Washington, D.C., for respondent in No. 43 and for appellees in Nos. 206 and 264.
Mr. Justice JACKSON delivered the opinion of the Court.
1
The ultimate question in these three cases is whether the United States constitutionally may deport a legally resident alien because of membership in the Communist Party which terminated before enactment of the Alien Registration Act, 1940.1
2
Harisiades, a Greek national, accompanied his father to the United States in 1916, when thirteen years of age, and has resided here since. He has taken a wife and sired two children, all citizens. He joined the Communist Party in 1925, when it was known as the Workers Party, and served as an organizer, Branch Executive Committeman, secretary of its Greek Bureau, and editor of its paper 'Empros.' The party discontinued his membership, along with that of other aliens, in 1939, but he has continued association with members. He was familiar with the principles and philosophy of the Communist Party and says he still believes in them. He disclaims personal belief in use of force and violence and asserts that the party favored their use only in defense. A warrant for his deportation because of his membership was issued in 1930 but was not served until 1946. The delay was due to inability to locate him because of his use of a number of aliases. After hearings, he was ordered deported on the grounds that after entry he had been a member of an organization which advocates overthrow of the Government by force and violence and distributes printed matter so advocating. He sought release by habeas corpus, which was denied by the District Court.2 The Court of Appeals for the Second Circuit affirmed.3
3
Mascitti, a citizen of Italy, came to this county in 1920, at the age of sixteen. He married a resident alien and has one American-born child. He was a member of the Young Workers Party, the Workers Party and the Communist Party between 1923 and 1929. His testimony was that he knew the party advocated a proletarian dictatorship, to be established by force and violence if the capitalist class resisted. He heard some speakers advocate violence, in which he says he did not personally believe, and he was not clear as to the party policy. He resigned in 1929, apparently because he lost sympathy with or interest in the party. A warrant for his deportation issued and was served in 1946. After the usual administrative hearings he was ordered deported on the same grounds as Harisiades. He sought relief by declaratory judgment, which was denied without opinion by a three-judge District Court for the District of Columbia. His case comes to this Court by direct appeal.
4
Mrs. Coleman, a native of Russia, was admitted to the United States in 1914, when thirteen years of age. She married an American citizen and has three children, citizens by birth. She admits being a member of the Communist Party for about a year, beginning in 1919, and again from 1928 to 1930, and again from 1936 to 1937 or 1938. She held no office and her activities were not significant. She disavowed much knowledge of party principles and program, claiming she joined each time because of some injustice the party was then fighting. The reasons she gives for leaving the party are her health and the party's discontinuance of alien memberships. She has been ordered deported because after entry she became a member of an organization advocating overthrow of the Government by force and violence. She sought an injunction on constitutional grounds, among others. Relief was denied, without opinion, by a three-judge District Court for the District of Columbia and her case also comes here by direct appeal.
5
Validity of the hearing procedures is questioned for noncompliance with the Administrative Procedure Act, which we think is here inapplicable.4 Admittedly, each of these deportations is authorized and required by the letter, spirit and intention of the statute. But the Act is assailed on three grounds: (1) that it deprives the aliens of liberty without due process of law in violation of the Fifth Amendment; (2) that it abridges their freedoms of speech and assembly in contravention of the First Amendment; and (3) that it is an ex post facto law which Congress is forbidden to pass by Art. I, § 9, cl. 3 of the Constitution.
6
We have in each case a finding, approved by the court below, that the Communist Party during the period of the alien's membership taught and advocated overthrow of the Government of the United States by force and violence. Those findings are not questioned here.
I.
7
These aliens ask us to forbid their expulsion by a departure from the long-accepted application to such cases of the Fifth Amendment provision that no person shall be deprived of life, liberty or property without due process of law. Their basic contention is that admission for permanent residence confers a 'vested right' on the alien, equal to that of the citizen, to remain within the country, and that the alien is entitled to constitutional protection in that matter to the same extent as the citizen. Their second line of defense is that if any power to deport domiciled aliens exists it is so dispersed that the judiciary must concur in the grounds for its exercise to the extent of finding them reasonable. The argument goes on to the contention that the grounds prescribed by the Act of 1940 bear no reasonable relation to protection of legitimate interests of the United States and concludes that the Act should be declared invalid. Admittedly these propositions are not founded in precedents of this Court.
8
For over thirty years each of these aliens has enjoyed such advantages as accrue from residence here without renouncing his foreign allegiance or formally acknowledging adherence to the Constitution he now invokes. Each was admitted to the United States, upon passing formidable exclusionary hurdles, in the hope that, after what may be called a probationary period, he would desire and be found desirable for citizenship. Each has been offered naturalization, with all of the rights and privileges of citizenship, conditioned only upon open and honest assumption of undivided allegiance to our government.5 But acceptance was and is not compulsory. Each has been permitted to prolong his original nationality indefinitely.
9
So long as one thus perpetuates a dual status as an American inhabitant but foreign citizen, he may derive advantages from two sources of law—American and international. He may claim protection against our Government unavailable to the citizen. As an alien he retains a claim upon the state of his citizenship to diplomatic intervention on his behalf, a patronage often of considerable value. The state of origin of each of these aliens could presently enter diplomatic remonstrance against these deportations if they were inconsistent with international law, the prevailing custom among nations or their own practices.
10
The alien retains immunities from burdens which the citizen must shoulder. By withholding his allegiance from the United States, he leaves outstanding a foreign call on his loyalties which international law not only permits our Government to recognize but commands it to respect. In deference to it certain dispensations from conscription for any military service have been granted foreign nationals.6 They cannot, consistently with our international commitments, be compelled 'to take part in the operations of war directed against their own country.'7 In addition to such general immunities they may enjoy particular treaty privileges.8
11
Under our law, the alien in several respects stands on an equal footing with citizens,9 but in others has never been conceded legal parity with the citizen.10 Most importantly, to protract this ambiguous status within the country is not his right but is a matter of permission and tolerance. The Government's power to terminate its hospitality has been asserted and sustained by this Court since the question first arose.11
12
War, of course, is the most usual occasion for extensive resort to the power. Though the resident alien may be personally loyal to the United States, if his nation becomes our enemy his allegiance prevails over his personal preference and makes him also our enemy, liable to expulsion or internment,12 and his property becomes subject to seizure and perhaps confiscation.13 But it does not require war to bring the power of deportation into existence or to authorize its exercise. Congressional apprehension of foreign or internal dangers short of war may lead to its use. So long as the alien elects to continue the ambiguity of his allegiance his domicile here is held by a precarious tenure.
13
That aliens remain vulnerable to expulsion after long residence is a practice that bristles with severities. But it is a weapon of defense and reprisal confirmed by international law as a power inherent in every sovereign state.14 Such is the traditional power of the Nation over the alien and we leave the law on the subject as we find it.
14
This brings us to the alternative defense under the Due Process Clause—that, granting the power, it is so unreasonably and harshly exercised by this enactment that it should be held unconstitutional.
15
In historical context the Act before us stands out as an extreme application of the expulsion power. There is no denying that as world convulsions have driven us toward a closed society the expulsion power has been exercised with increasing severity, manifest in multiplication of grounds for deportation, in expanding the subject classes from illegal entrants to legal residents, and in greatly lengthening the period of residence after which one may be expelled.15 This is said to have reached a point where it is the duty of this Court to call a halt upon the political branches of the Government.
16
It is pertinent to observe that any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.16
17
These restraints upon the judiciary, occasioned by different events, do not control today's decision but they are pertinent. It is not necessary and probably not possible to delineate a fixed and precise line of separation in these matters between political and judicial power under the Constitution. Certainly, however, nothing in the structure of our Government or the text of our Constitution would warrant judicial review by standards which would require us to equate our political judgment with that of Congress.
18
Under the conditions which produced this Act, can we declare that congressional alarm about a coalition of Communist power without and Communist conspiracy within the United States is either a fantasy or a pretense? This Act was approved by President Roosevelt June 28, 1940, when a world war was threatening to involve us, as soon it did. Communists in the United States were exerting every effort to defeat and delay our preparations. Certainly no responsible American would say that there were then or are now no possible grounds on which Congress might believe that Communists in our midst are inimical to our security.
19
Congress received evidence that the Communist movement here has been heavily laden with aliens and that Soviet control of the American Communist Party has been largely through alien Communists. It would be easy for those of us who do not have security responsibility to say that those who do are taking Communism too seriously and overestimating its danger. But we have an Act of one Congress which, for a decade, subsequent Congresses have never repealed but have strengthened and extended. We, in our private opinions, need not concur in Congress' policies to hold its enactments constitutional. Judicially we must tolerate what personally we may regard as a legislative mistake.
20
We are urged, because the policy inflicts severe and undoubted hardship on affected individuals, to find a restraint in the Due Process Clause. But the Due Process Clause does not shield the citizen from conscription and the consequent calamity of being separated from family, friends, home and business while he is transported to foreign lands to stem the tide of Communism. If Communist aggression creates such hardships for loyal citizens, it is hard to find justification for holding that the Constitution requires that its hardships must be spared the Communist alien. When citizens raised the Constitution as a shield against expulsion from their homes and places of business, the Court refused to find hardship a cause for judicial intervention.17
21
We think that, in the present state of the world, it would be rash and irresponsible to reinterpret our fundamental law to deny or qualify the Government's power of deportation. However desirable worldwide amelioration of the lot of aliens, we think it is peculiarly a subject for international diplomacy. It should not be initiated by judicial decision which can only deprive our own Government of a power of defense and reprisal without obtaining for American citizens abroad any reciprocal privileges or immunities. Reform in this field must be entrusted to the branches of the Government in control of our international relations and treaty-making powers.
22
We hold that the Act is not invalid under the Due Process Clause. These aliens are not entitled to judicial relief unless some other constitutional limitation has been transgressed, to which inquiry we turn.
II.
23
The First Amendment is invoked as a barrier against this enactment. The claim is that in joining an organization advocating overthrow of government by force and violence the alien has merely exercised freedoms of speech, press and assembly which that Amendment guarantees to him.
24
The assumption is that the First Amendment allows Congress to make no distinction between advocating change in the existing order by lawful elective processes and advocating change by force and violence, that freedom for the one includes freedom for the other, and that when teaching of violence is denied so is freedom of speech.
25
Our Constitution sought to leave no excuse for violent attack on the status quo by providing a legal alternative—attack by ballot. To arm all men for orderly change, the Constitution put in their hands a right to influence the electorate by press, speech and assembly. This means freedom to advocate or promote Communism by means of the ballot box, but it does not include the practice or incitement of violence.18
26
True, it often is difficult to determine whether ambiguous speech is advocacy of political methods or subtly shades into a methodical but prudent incitement to violence. Communist Governments avoid the inquiry by suppressing everything distasteful. Some would have us avoid the difficulty by going to the opposite extreme of permitting incitement to violent overthrow at least unless it seems certain to succeed immediately. We apprehend that the Constitution enjoins upon us the duty, however difficult, of distinguishing between the two. Different formulae have been applied in different situations and the test applicable to the Communist Party has been stated too recently to make further discussion at this time profitable.19 We think the First Amendment does not prevent the deportation of these aliens.
III.
27
The remaining claim is that this Act conflicts with Art. I, § 9, of the Constitution forbidding ex post facto enactments. An impression of retroactivity results from reading as a new and isolated enactment what is actually a continuation of prior legislation.
28
During all the years since 1920 Congress has maintained a standing admonition to aliens, on pain of deportation, not to become members of any organization that advocates overthrow of the United States Government by force and violence, a category repeatedly held to include the Communist Party. These aliens violated that prohibition and incurred liability to deportation. They were not caught unawares by a change of law. There can be no contention that they were not adequately forewarned both that their conduct was prohibited and of its consequences.
29
In 1939, this Court decided Kessler v. Strecker, 307 U.S. 22, 59 S.Ct. 694, 83 L.Ed. 1082, in which it was held that Congress, in the statute as it then stood, had not clearly expressed an intent that Communist Party membership remained cause for deportation after it ceased.20 The Court concluded that in the absence of such expression only contemporaneous membership would authorize deportation.
30
The reaction of the Communist Party was to drop aliens from membership, at least in form, in order to immunize them from the consequences of their party membership.
31
The reaction of Congress was that the Court had misunderstood its legislation. In the Act here before us it supplied unmistakable language that past violators of its prohibitions continued to be deportable in spite of resignation or expulsion from the party. It regarded the fact that an alien defied our laws to join the Communist Party as an indication that he had developed little comprehension of the principles or practice of representative government or else was unwilling to abide by them.
32
However, even if the Act were found to be retroactive, to strike it down would require us to overrule the construction of the ex post facto provision which has been followed by this Court from earliest times. It always has been considered that that which it forbids is penal legislation which imposes or increases criminal punishment for conduct lawful previous to its enactment.21 Deportation, however severe its consequences, has been consistently classified as a civil rather than a criminal procedure.22 Both of these doctrines as original proposals might be debatable, but both have been considered closed for many years and a body of statute and decisional law has been built upon them. In Bugajewitz v. Adams, 228 U.S. 585, 591, 33 S.Ct. 607, 608, 57 L.Ed. 978, Mr. Justice Holmes, for the Court, said: 'It is thoroughly established that Congress has power to order the deportation of aliens whose presence in the country it deems hurtful. The determination by facts that might constitute a crime under local law is not a conviction of crime, nor is the deportation a punishment; it is simply a refusal by the government to harbor persons whom it does not want. The coincidence of the local penal law with the policy of Congress is an accident. * * * The prohibition of ex post facto laws in article 1, § 9, has no application * * * and with regard to the petitioner, it is not necessary to construe the statute as having any retrospective effect.' Later, the Court said, 'It is well settled that deportation, while it may be burdensome and severe for the alien, is not a punishment. * * * The inhibition against the passage of an ex post facto law by Congress in section 9 of article 1 of the Constitution applies only to criminal laws * * * and not to a deportation act like this * * *.' Mahler v. Eby, 264 U.S. 32, 39, 44 S.Ct. 283, 286, 68 L.Ed. 549.
33
It is urged against the foregoing opinions that in a few cases the ex post facto prohibition had been applied to what appeared to be civil disabilities. Fletcher v. Peck, 6 Cranch 87, 3 L.Ed. 162; Cummings v. State of Missouri, 4 Wall. 277, 18 L.Ed. 356; Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366; Pierce v. Carskadon, 16 Wall. 234, 21 L.Ed. 276. The Court has since explained that those cases proceeded from the view that novel disabilities there imposed upon citizens were really criminal penalties for which civil form was a disguise. Burgess v. Salmon, 97 U.S. 381, 385, 24 L.Ed. 1104. Those cases were known to the Justices who promulgated the above-quoted opinions but have never been considered to govern deportation. The facts of this case afford no basis for reconsidering or modifying the long-settled doctrine.
34
It is contended that this policy allows no escape by reformation. We are urged to apply some doctrine of atonement and redemption. Congress might well have done so, but it is not for the judiciary to usurp the function of granting absolution or pardon. We cannot do so for deportable ex-convicts, even though they have served a term of imprisonment calculated to bring about their reformation.
35
When the Communist Party as a matter of party strategy formally expelled alien members en masse, it destroyed any significance that discontinued membership might otherwise have as indication of change of heart by the individual. Congress may have believed that the party tactics threw upon the Government an almost impossible burden if it attempted to separate those who sincerely renounced Communist principles of force and violence from those who left the party the better to serve it. Congress, exercising the wide discretion that it alone has in these matters, declined to accept that as the Government's burden.
36
We find none of the constitutional objections to the Act well founded. The judgments accordingly are affirmed.
37
Affirmed.
38
Mr. Justice CLARK took no part in the consideration or decision of these cases.
39
Mr. Justice FRANKFURTER, concurring.
40
It is not for this Court to reshape a world order based on politically sovereign States. In such an international ordering of the world a national State implies a special relationship of one body of people, i.e., citizens of that State, whereby the citizens of each State are aliens in relation to every other State. Ever since national States have come into being, the right of people to enjoy the hospitality of a State of which they are not citizens has been a matter of political determination by each State. (I put to one side the oddities of dual citizenship.) Though as a matter of political outlook and economic need this country has traditionally welcomed aliens to come to its shores, it has done so exclusively as a matter of political outlook and national self-interest. This policy has been a political policy, belonging to the political branch of the Government wholly outside the concern and the competence of the Judiciary.
41
Accordingly, when this policy changed and the political and law-making branch of this Government, the Congress, decided to restrict the right of immigration about seventy years ago, this Court thereupon and ever since has recognized that the determination of a selective and exclusionary immigration policy was for the Congress and not for the Judiciary. The conditions for entry of every alien, the particular classes of aliens that shall be denied entry altogether, the basis for determining such classification, the right to terminate hospitality to aliens, the grounds on which such determination shall be based, have been recognized as matters solely for the responsibility of the Congress and wholly outside the power of this Court to control.
42
The Court's acknowledgment of the sole responsibility of Congress for these matters has been made possible by Justices whose cultural outlook, whose breadth of view and robust tolerance were not exceeded by those of Jefferson. In their personal views, libertarians like Mr. Justice Holmes and Mr. Justice Brandeis doubtless disapproved of some of these policies, departures as they were from the best traditions of this country and based as they have been in part on discredited racial theories or manipulation of figures in formulating what is known as the quota system. But whether immigration laws have been crude and cruel, whether they may have reflected xenophobia in general or anti-Semitism or anti-Catholicism, the responsibility belongs to Congress. Courts do enforce the requirements imposed by Congress upon officials in administering immigration laws, e.g., Kwock Jan Fat v. White, 253 U.S. 454, 40 S.Ct. 566, 64 L.Ed. 1010, and the requirement of Due Process may entail certain procedural observances. E.g., Ng Fung Ho v. White, 259 U.S. 276, 42 S.Ct. 492, 66 L.Ed. 938. But the underlying policies of what classes of aliens shall be allowed to enter and what classes of aliens shall be allowed to stay, are for Congress exclusively to determine even though such determination may be deemed to offend American traditions and may, as has been the case, jeopardize peace.
43
In recognizing this power and this responsibility of Congress, one does not in the remotest degree align oneself with fears unworthy of the American spirit or with hostility to the bracing air of the free spirit. One merely recognizes that the place to resist unwise or cruel legislation touching aliens is the Congress, not this Court.
44
I, therefore, join in the Court's opinion in these cases.
45
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.
46
There are two possible bases for sustaining this Act:
47
(1) A person who was once a Communist is tainted for all time and forever dangerous to our society; or
48
(2) Punishment through banishment from the country may be placed upon an alien not for what he did, but for what his political views once were.
49
Each of these is foreign to our philosophy. We repudiate our traditions of tolerance and our articles of faith based upon the Bill of Rights when we bow to them by sustaining an Act of Congress which has them as a foundation.
50
The view that the power of Congress to deport aliens is absolute and may be exercised for any reason which Congress deems appropriate rests on Fong Yue Ting v. United States, 149 U.S. 698, 13 S.Ct. 1016, 37 L.Ed. 905, decided in 1893 by a six-to-three vote. That decision seems to me to be inconsistent with the philosophy of constitutional law which we have developed for the protection of resident aliens. We have long held that a resident alien is a 'person' within the meaning of the Fifth and the Fourteenth Amendments. He therefore may not be deprived either by the National Government or by any state of life, liberty, or property without due process of law. Nor may he be denied the equal protection of the laws. A state was not allowed to exclude an alien from the laundry business because he was a Chinese,1 nor discharge him from employment because he was not a citizen,2 nor deprive him of the right to fish because he was a Japanese ineligible to citizenship.3 An alien's property (provided he is not an enemy alien), may not be taken without just compensation.4 He is entitled to habeas corpus to test the legality of his restraint,5 to the protection of the Fifth and Sixth Amendments in criminal trials,6 and to the right of free speech as guaranteed by the First Amendment.7
51
An alien, who is assimilated in our society, is treated as a citizen so far as his property and his liberty are concerned. He can live and work here and raise a family, secure in the personal guarantees every resident has and safe from discriminations that might be leveled against him because he was born abroad. Those guarantees of liberty and livelihood are the essence of the freedom which this country from the beginning has offered the people of all lands. If those rights, great as they are, have constitutional protection, I think the more important one—the right to remain here—has a like dignity.
52
The power of Congress to exclude, admit, or deport aliens flows from sovereignty itself and from the power 'To establish an uniform Rule of Naturalization'. U.S.Const., Art. I, § 8, cl. 4. The power of deportation is therefore an implied one. The right to life and liberty is an express one. Why this implied power should be given priority over the express guarantee of the Fifth Amendment has never been satisfactorily answered. Mr. Justice Brewer's dissent in Fong Yue Ting v. United States, supra, 149 U.S. at pages 737—738, 13 S.Ct. at page 1031, grows in power with the passing years: 'It is said that the power here asserted is inherent in sovereignty. This doctrine of powers inherent in sovereignty is one both indefinite and dangerous. Where are the limits to such powers to be found, and by whom are they to be pronounced? Is it within legislative capacity to declare the limits? If so, then the mere assertion of an inherent power creates it, and despotism exists. May the courts establish the boundaries? Whence do they obtain the authority for this? Shall they look to the practices of other nations of ascertain the limits? The governments of other nations have elastic powers. Ours are fixed and bounded by a written constitution. The expulsion of a race may be within the inherent powers of a despotism. History, before the adoption of this constitution, was not destitute of examples of the exercise of such a power; and its framers were familiar with history, and wisely, as it seems to me, they gave to this government no general power to banish. Banishment may be resorted to as punishment for crime; but among the powers reserved to the people, and not delegated to the government, is that of determining whether whole classes in our midst shall, for no crime but that of their race and birthplace, be driven from our territory.'
53
The right to be immune from arbitrary decrees of banishment certainly may be more important to 'liberty' than the civil rights which all aliens enjoy when they reside here. Unless they are free from arbitrary banishment, the 'liberty' they enjoy while they live here is indeed illusory. Banishment is punishment in the practical sense. It may deprive a man and his family of all that makes life worth while. Those who have their roots here have an important stake in this country. Their plans for themselves and their hopes for their children all depend on their right to stay. If they are uprooted and sent to lands no longer known to them, no longer hospitable, they become displaced, homeless people condemned to bitterness and despair.
54
This drastic step may at times be necessary in order to protect the national interest. There may be occasions when the continued presence of an alien, no matter how long he may have been here, would be hostile to the safety or welfare of the Nation due to the nature of his conduct. But unless such condition is shown, I would stay the hand of the Government and let those to whom we have extended our hospitality and who have become members of our communities remain here and enjoy the life and liberty which the Constitution guarantees.
55
Congress has not proceeded by that standard. It has ordered these aliens deported not for what they are but for what they once were. Perhaps a hearing would show that they continue to be people dangerous and hostile to us. But the principle of forgiveness and the doctrine of redemption are too deep in our philosophy to admit that there is no return for those who have once erred.
1
54 Stat. 670, 8 U.S.C. § 137, 8 U.S.C.A. § 137.
2
90 F.Supp. 397.
3
187 F.2d 137.
4
Petitioner Harisiades and appellant Coleman contend that the proceedings against them must be nullified for failure to conform to the requirements of the Administrative Procedure Act, 60 Stat. 237, 5 U.S.C. § 1001 et seq., 5 U.S.C.A. § 1001 et seq. However, § 12 of the Act, 60 Stat. 244, 5 U.S.C. § 1011, 5 U.S.C.A. § 1011, provides that '* * * no procedural requirement shall be mandatory as to any agency proceeding initiated prior to the effective date of such requirement.' The proceedings against Harisiades and Coleman were instituted before the effective date of the Act. Harisiades also contends that, the Administrative Procedure Act aside, he was denied procedural due process in that in his 1946—1947 hearings the same individual acted both as presiding officer and examining officer. However, it appears that the officer here performed both functions with Harisiades' consent. He, therefore, has no standing to raise the objection now.
5
40 Stat. 548, as amended, 8 U.S.C. § 732(a)(13), (16), (17), (18), (19), 8 U.S.C.A. § 732(a)(13, 16—19); 61 Stat. 122, as amended, 8 U.S.C. § 735, 8 U.S.C.A. § 735. But a certificate of naturalization is subject to revocation on the ground of fraud or other illegality in the procurement. 54 Stat. 1158, 8 U.S.C. § 738, 8 U.S.C.A. § 738; Knauer v. United States, 328 U.S. 654, 66 S.Ct. 1304, 90 L.Ed. 1500.
6
§ 2 of the Selective Draft Act of 1917, 40 Stat. 76, as amended, 50 U.S.C.App. § 202, 50 U.S.C.A.Appendix, § 202; § 3 of the Selective Training and Service Act of 1940, 54 Stat. 885, as amended, 50 U.S.C.App. § 303, 50 U.S.C.A.Appendix, § 303; § 4(a) of the Selective Service Act of 1948, 62 Stat. 604, as amended, 50 U.S.C.App. § 454(a), 50 U.S.C.A.Appendix, § 454(a). Cf. Moser v. United States, 341 U.S. 41, 71 S.Ct. 553, 95 L.Ed. 729.
7
Article 23, 1907 Hague Convention, Respecting the Laws and Customs of War on Land, 36 Stat. 2301—2302.
8
Borchard, Diplomatic Protection of Citizens Abroad, 64.
9
This Court has held that the Constitution assures him a large measure of equal economic opportunity, Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131; he may invoke the writ of habeas corpus to protect his personal liberty, Nishimura Ekiu v. United States, 142 U.S. 651, 660, 12 S.Ct. 336, 338, 35 L.Ed. 1146; in criminal proceedings against him he must be accorded the protections of the Fifth and Sixth Amendments, Wong Wing v. United States, 163 U.S. 228, 16 S.Ct. 977, 41 L.Ed. 140; and, unless he is an enemy alien, his property cannot be taken without just compensation. Russian Volunteer Fleet v. United States, 282 U.S. 481, 51 S.Ct. 229, 75 L.Ed. 473.
10
He cannot stand for election to many public offices. For instance, Art. I, § 2, cl. 2, § 3, cl. 3, of the Constitution respectively require that candidates for election to the House of Representatives and Senate be citizens. See Borchard, Diplomatic Protection of Citizens Abroad, 63. The states, to whom is entrusted the authority to set qualifications of voters, for most purposes require citizenship as a condition precedent to the voting franchise. The alien's right to travel temporarily outside the United States is subject to restrictions not applicable to citizens. 43 Stat. 158, as amended, 8 U.S.C. § 210, 8 U.S.C.A. § 210. If he is arrested on a charge of entering the country illegally, the burden is his to prove 'his right to enter or remain'—no presumptions accrue in his favor by his presence here. 39 Stat. 889, as amended, 8 U.S.C. § 155(a), 8 U.S.C.A. § 155(a).
11
Fong Yue Ting v. United States, 149 U.S. 698, 707, 711 714, 730, 13 S.Ct. 1016, 1019, 1021—1022, 1028, 37 L.Ed. 905; Lem Moon Sing v. United States, 158 U.S. 538, 545—546, 15 S.Ct. 967, 969—970, 39 L.Ed. 1082; Li Sing v. United States, 180 U.S. 486, 494—495, 21 S.Ct. 449, 452, 453, 45 L.Ed. 634; Fok Yung Yo v. United States, 185 U.S. 296, 302, 22 S.Ct. 686, 688, 46 L.Ed. 917; Kaoru Yamataya v. Fisher (The Japanese Immigrant Case), 189 U.S. 86, 97, 23 S.Ct. 611, 613, 47 L.Ed. 721; United States v. Ju Toy, 198 U.S. 253, 261, 25 S.Ct. 644, 645, 49 L.Ed. 1040; Zakonaite v. Wolf, 226 U.S. 272, 275, 33 S.Ct. 31, 32, 57 L.Ed. 218; Chuoco Tiaco v. Forbes, 228 U.S. 549, 556—557, 33 S.Ct. 585, 586, 57 L.Ed. 960; Bugajewitz v. Adams, 228 U.S. 585, 591. 33 S.Ct. 607, 608, 57 L.Ed. 978.
12
40 Stat. 531, 50 U.S.C. § 21, 50 U.S.C.A. § 21.
13
40 Stat. 411, 50 U.S.C.App. § 2(c), 50 U.S.C.A.Appendix, § 2(c); 40 Stat. 415, 50 U.S.C.App. § 6, 50 U.S.C.A.Appendix, § 6; 62 Stat. 1246, 50 U.S.C.App. § 39, 50 U.S.C.A.Appendix, § 39; Guessefeldt v. McGrath, 342 U.S. 308, 72 S.Ct. 338.
14
'* * * (I)n strict law, a State can expel even domiciled aliens without so much as giving the reasons, the refusal of the expelling State to supply the reasons for expulsion to the home State of the expelled alien does not constitute an illegal, but only a very unfriendly act.' 1 Oppenheim, International Law (3d ed., Roxburgh, 1920), 498—502, at 499. But cf. 1 Oppenheim, International Law (7th ed., Lauterpacht, 1948), 630—634, at 631. See also 4 Moore, International Law Digest, 67—96, citing examples; Wheaton's International Law (6th ed., Keith, 1929) 210 211; Fong Yue Ting v. United States, 149 U.S. 698, 13 S.Ct. 1016, 37 L.Ed. 905.
15
An open door to the immigrant was the early federal policy. It began to close in 1884 when Orientals were excluded. 23 Stat. 115. Thereafter, Congress has intermittently added to the excluded classes, and as rejections at the border multiplied illegal entries increased. To combat these, recourse was had to deportation in the Act of 1891, 26 Stat. 1086. However, that Act could be applied to an illegal entrant only within one year after his entry. Although that time limitation was subsequently extended, 32 Stat. 1218; 34 Stat. 904—905, until after the turn of the century expulsion was used only as an auxiliary remedy to enforce exclusion.
Congress, in 1907, provided for deportation of legally resident aliens, but the statute reached only women found engaging in prostitution, and deportation proceedings were authorized only within three years after entry.
From those early steps, the policy has been extended. In 1910, new classes of resident aliens were listed for deportation, including for the first time political offenders such as anarchists and those believing in or advocating the overthrow of the Government by force and violence. 36 Stat. 264. In 1917, aliens who were found after entry to be advocating anarchist doctrines or the overthrow of the Government by force and violence were made subject to deportation, a five-year time limit being retained. 39 Stat. 889. A year later, deportability because of membership in described subversive organizations was introduced. 40 Stat. 1012; 41 Stat. 1008. When this Court, in 1939, held that that Act reached only aliens who were members when the proceedings against them were instituted, Kessler v. Strecker, 307 U.S. 22, 59 S.Ct. 694, 83 L.Ed. 1082, Congress promptly enacted the statute before us, making deportation mandatory for all aliens who at any time past have been members of the proscribed organizations. In so doing it also eliminated the time limit for institution of proceedings thereunder. Alien Registration Act, 1940, 54 Stat. 670, 673, 8 U.S.C.A. § 137.
16
United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319—322, 57 S.Ct. 216, 220—222, 81 L.Ed. 255; Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 111, 68 S.Ct. 431, 436, 92 L.Ed. 568; U.S.Const. Art. IV, § 4; Luther v. Borden, 7 How. 1, 42, 12 L.Ed. 581; Pacific States Telephone & Telegraph Co. v. State of Oregon, 223 U.S. 118, 32 S.Ct. 224, 56 L.Ed. 377; Marshall v. Dye, 231 U.S. 250, 34 S.Ct. 92, 58 L.Ed. 206. In respect to the war power over even citizens, see Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 92, 63 S.Ct. 1375, 1381, 87 L.Ed. 1774; Toyosaburo Korematsu v. United States, 323 U.S. 214, 217—218, 65 S.Ct. 193, 194, 89 L.Ed. 194. That English courts also refuse to review grounds for deportation orders appears from Rex v. Home Secretary; Ex parte Bressler, 27 Cox Crim. Cases 655.
17
Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774; Toyosaburo Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194.
18
Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137.
19
Ibid.
20
40 Stat. 1012, 8 U.S.C.A. § 137.
21
Calder v. Bull, 3 Dall. 386, 390, 1 L.Ed. 648; Johannessen v. United States, 225 U.S. 227, 242, 32 S.Ct. 613, 617, 56 L.Ed. 1066.
22
Fong Yue Ting v. United States, 149 U.S. 698, 730, 13 S.Ct. 1016, 1028, 37 L.Ed. 905; Bugajewitz v. Adams, 228 U.S. 585, 591, 33 S.Ct. 607, 608, 57 L.Ed. 978; Bilokumsky v. Tod, 263 U.S. 149, 154, 44 S.Ct. 54, 56, 68 L.Ed. 221.
1
Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220.
2
Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131.
3
Torao Takahashi v. Fish and Game Commission, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478.
4
Russian Volunteer Fleet v. United States, 282 U.S. 481, 51 S.Ct. 229, 75 L.Ed. 473.
5
Nishimura Ekiu v. United States, 142 U.S. 651, 660, 12 S.Ct. 336, 338, 35 L.Ed. 1146.
6
Wong Wing v. United States, 163 U.S. 228, 16 S.Ct. 977, 41 L.Ed. 140.
7
Bridges v. State of California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192.
| 23
|
342 U.S. 570
72 S.Ct. 492
96 L.Ed. 576
FAR EAST CONFERENCE et al.v.UNITED STATES et al.
No. 15, Misc.
Argued Jan. 30, 1952.
Decided March 10, 1952.
Mr. John W. Davis, New York City, for petitioner Isthmian S.S. co.
Mr. Elkan Turk, New York City, for the petitioners Far East Conference, et al.
Mr. Arthur M. Boal, New York City, for intervenor-respondent Federal Maritime Board.
Mr. J. Roger Wollenberg, Washington, D.C., for the United States.
Mr. Justice FRANKFURTER delivered the opinion of the Court.
1
This is a suit in the District Court for New Jersey to enjoin violations of the Sherman Law.1 26 Stat. 209, 15 U.S.C. §§ 1 and 2, 15 U.S.C.A. §§ 1, 2. The defendants were the Far East Conference, a voluntary association, and its constituent members, steamship companies engaged in what is known as the 'outbound Far East trade.' The Conference was organized in 1922, and the Conference Agreement under which it operates was approved by the United States Shipping Board,2 exercising authority under the Shipping Act of 1916, as amended.3 Under this Agreement there has been established a dual system of rates, called the contract and noncontract rate system.4 Shippers who agreed to use exclusively bottoms of Conference members paid one rate; those who did not bind themselves by such exclusive patronage contract paid a fixed higher rate. Shippers who adhered to the exclusive patronage contract were not tied to a particular carrier; they were free to choose among Conference carriers. The Conference members, however, were obligated to supply facilities sufficient to handle freight destined for the Far East. This system of two levels of freight rates constituted the gravamen of the Government's suit.
2
Admitting the dual-rate system, the defendants justified on the merits but moved that the complaint be dismissed on the ground that the nature of the issues required that resort must first be had to the Federal Maritime Board before a District Court could adjudicate the Government's complaint. The Board, as intervenor, joined in this motion. It was denied by the District Court, 94 F.Supp. 900, and we brought the case here, under § 262 of the Judicial Code, 28 U.S.C. § 1651(a), 28 U.S.C.A. § 1651(a), because there are in issue important questions regarding the relation between the Sherman Law and the Shipping Act. 342 U.S. 811, 72 S.Ct. 59.
3
At the threshold we must decide whether, in a suit brought by the United States to enjoin a dual-rate system enforced in concert by steamship carriers engaged in foreign trade, a District Court can pass on the merits of the complaint before the Federal Maritime Board has passed upon the question. We see no reason to depart from United States Navigation Co. v. Cunard Steamship Co., 284 U.S. 474, 52 S.Ct. 247, 76 L.Ed. 408. That case answers our problem. There a competing carrier invoked the Antitrust Acts for an injunction against a combination of carriers in the North Atlantic trade which were alleged to operate a dual-rate system similar to that here involved. The plaintiff had not previously challenged the offending practice before the United States Shipping Board, the predecessor in authority of the present Maritime Board. This Court sustained the two lower courts, D.C.S.D.N.Y., 39 F.2d 204 and 2 Cir., 50 F.2d 83, dismissing the bill because initial consideration by the Shipping Board of the circumstances in controversy had not been sought. After a detailed analysis of the provisions of the Shipping Act and their relation to the construction theretofore given to the Interstate Commerce Act, 49 U.S.C.A. § 1 et seq., this was the conclusion:
4
'The (Shipping) act is restrictive in its operation upon some of the activities of common carriers by water, and permissive in respect of others. Their business involves questions of an exceptional character, the solution of which may call for the exercise of a high degree of expert and technical knowledge. Whether a given agreement among such carriers should be held to contravene the act may depend upon a consideration of economic relations, of facts peculiar to the business or its history, of competitive conditions in respect of the shipping of foreign countries, and of other relevant circumstances, generally unfamiliar to a judicial tribunal, but well understood by an administrative body especially trained and experienced in the intricate and technical facts and usages of the shipping trade, and with which that body, consequently, is better able to deal. Compare Chicago Board of Trade v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 62 L.Ed. 683; United States v. Hamburgh-American S.S. Line, (D.C.) 216 F. 971.
5
'A comparison of the enumeration of wrongs charged in the bill with the provisions of the sections of the Shipping Act above outlined conclusively shows, without going into detail, that the allegations either constitute direct and basic charges of violations of these provisions, or are so interrelated with such charges as to be, in effect, a component part of them; and the remedy is that afforded by the Shipping Act, which to that extent supersedes the anti-trust laws. Compare Keogh v. Chicago & N.W. Ry. Co., supra, 260 U.S. (156) at page 162, 43 S.Ct. 47, 49, 67 L.Ed. 183. The matter therefore is within the exclusive preliminary jurisdiction of the Shipping Board. The scope and evident purpose of the Shipping Act, as in the case of the Interstate Commerce Act, are demonstrative of this conclusion.' 284 U.S. 474, 485, 52 S.Ct. 247, 250.
6
The Court thus applied a principle, now firmly established, that in cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be passed over. 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 review by the judiciary are more rationally exercised, by preliminary resort for ascertaining and interpreting the circumstances underlying legal issues to agencies that are better equipped than courts by specialization, by insight gained through experience, and by more flexible procedure.
7
It is significant that this mode of accomodating the complementary roles of courts and administrative agencies in the enforcement of law was originally applied in a situation where the face of the statute gave the Interstate Commerce Commission and the courts concurrent jurisdiction. 'The pioneer work of Chief Justice White' in Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553, as his successor characterized it, 257 U.S. xxvi, was one of those creative judicial labors whereby modern administrative law is being developed as part of our traditional system of law. In this case we are merely applying the philosophy which was put in memorable words by Mr. Justice (as he then was) Stone: '* * * court and agency are not to be regarded as wholly independent and unrelated instrumentalities of justice, each acting in the performance of its prescribed statutory duty without regard to the appropriate function of the other in securing the plainly indicated objects of the statute. Court and agency are the means adopted to attain the prescribed end, and so far as their duties are defined by the words of the statute, those words should be construed so as to attain that end through co-ordinated action. Neither body should repeat in this day the mistake made by the courts of law when equity was struggling for recognition as an ameliorating system of justice; neither can rightly be regarded by the other as an alien intruder, to be tolerated if must be, but never to be encouraged or aided by the other in the attainment of the common aim.' United States v. Morgan, 307 U.S. 183, 191, 59 S.Ct. 795, 799, 83 L.Ed. 1211.
8
The sole distinction between the Cunard case and this is that there a private shipper invoked the Anti-Trust Acts and here it is the Government. This difference does not touch the factors that determined the Cunard case. The same considerations of administrative expertise apply, whoever initiates the action. The same Anti-Trust Laws and the same Shipping Act apply to the same dual-rate system. To the same extent they define the appropriate orbits of action as between court and Maritime Board.
9
But the Government argues that it should not be forced to go first to the Board because the United States may not be deemed a 'person,' who under § 22 of the Shipping Act may file a complaint with the Maritime Board.5 Surely the large question here in issue ought not to turn on such a debating point. It is almost frivolous to suggest that the Maritime Board would deny standing to the United States as a complainant. The Board has consistently treated the United States as a 'person' within its rule for intervention. We ought not to dally longer with this objection, considering the fact that the United States, as a matter of common knowledge, is today one of the largest shippers in the Far East trade. The matter seems to be disposed of by United States v. Interstate Commerce Commission, 337 U.S. 426, 430, 69 S.Ct. 1410, 1413, 93 L.Ed. 1451 et seq., involving similar provisions of the Interstate Commerce Act.
10
Having concluded that initial submission to the Federal Maritime Board is required, we may either order the case retained on the District Court docket pending the Board's action, General American Tank Car Corp. v. El Dorado Terminal Co., 308 U.S. 422, 432—433, 60 S.Ct. 325, 331, 84 L.Ed. 361; El Dorado Oil Works v. United States, 328 U.S. 12, 17, 66 S.Ct. 843, 846, 90 L.Ed. 1053; see United States v. Interstate Commerce Commission, supra, 337 U.S. at page 465, note 12, 69 S.Ct. 1430, or order dismissal of the proceeding brought in the District Court. As distinguished from the situation presented by the first El Dorado case, supra, which was a contract action raising only incidentally a question proper for initial administrative decision, the present case involves questions within the general scope of the Maritime Board's jurisdiction. Shipping Act of 1916, §§ 14, 15, 39 Stat. 728, 733, 46 U.S.C. §§ 812, 814, 46 U.S.C.A. §§ 812, 814. An order of the Board will be subject to review by a United States Court of Appeals, with opportunity for further review in this Court on writ of certiorari. Pub.L.No.901, 81st Cong., 2d Sess., §§ 2, 10, 64 Stat. 1129, 1132. If the Board's order is favorable to the United States, it can be enforced by rpocess of the District Court on the Attorney General's application. 39 Stat. 728, 737, 46 U.S.C. § 828, 46 U.S.C.A. § 828. We believe that no purpose will here be served to hold the present action in abeyance in the District Court while the proceeding before the Board and subsequent judicial review or enforcement of its order are being pursued. A similar suit is easily initiated later, if appropriate. Business-like procedure counsels that the Government's complaint should now be dismissed, as was the complaint in United States Navigation Co. v. Cunard Steamship Co., supra.
11
The judgment of the District Court must be reversed.
12
Reversed.
13
Mr. Justice CLARK took no part in the consideration or decision of this case.
14
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.
15
The Shipping Act would have to be amended for me to reach the result of the majority. The Conference agreement, approved by the Board in 1922, provides for the adoption by the Conference of a tariff of rates and charges. It states that there shall be no unjust discrimination against shippers and no rebates paid to them. There is no provision in the agreement for dual rates—no arrangement for allowing one rate to shippers who give all their business to the members and for retaliations against nonsubscribing shippers by exacting from them a higher rate. Nevertheless petitioners have prescribed this dual rate system for the purpose of barring from the outbound Far East trade steamship lines that are not members of the combination. At least these are the facts if we are to believe the allegations of the complaint, as we must on the motion to dismiss.
16
If the Board had expressly approved the dual rate system, and the dual rate system did not violate the Shipping Act, then there would be immunity from the Sherman Act, since § 15 of the Shipping Act, 39 Stat. 733, as amended, 46 U.S.C. § 814, 46 U.S.C.A. § 814, gives the Board authority to approve agreements fixing or regulating rates, in effect makes 'lawful' the rates so approved, and exempts from the Sherman Act every 'lawful' agreement concerning them. But that exemption from the Sherman Act can be acquired only in the manner prescribed by § 15. Here no effort was made to obtain it. Hence the petitioners are at large, subject to all of the restraints of the Sherman Act.
17
Why should the Department of Justice be remitted to the Board for its remedy? The Board has no authority to enforce the Sherman Act.1 If the rates were filed, of course the Board would have exclusive jurisdiction to pass on them. But even then it is restricted. Section 14, Third, for example, makes unlawful retaliation against any shipper by resort to discriminatory or unfair tactics because a shipper has patronized another carrier. And it would seem plain that when a shipper is charged one rate if he gives the Conference a monopoly of his business and another and higher rate if the shipper uses a carrier not a member of the Conference, the shipper is being retaliated against for shopping around among carriers.
18
Petitioners, therefore, operate outside the law not only because they have failed to submit their schedule of rates to the Board but also because the rates adopted would, if approved, be illegal.2 The steamship companies, therefore, flout the law as plainly as if they used rates that had been disapproved by the Board. In either case the public interest needs protection if the Sherman Act is to be enforced—whether it be represented in a criminal prosecution or, as here, in a civil proceeding brought by the United States.
19
The jurisdiction of the Department of Justice must commence at this point, unless we are to amend the Act by granting an anti-trust exemption to rate fixing not only when the rates are filed by the companies and approved by the Board but also when they are not filed at all or are rates which, if filed, could not be approved. I would read the Act as written and require the steamship companies to obtain the antitrust exemption in the precise way Congress has provided.
1
The jurisdiction of the District Court was based on § 4 of the Sherman Law: 'The several district courts of the United States are invested with jurisdiction to prevent and restrain violations of sections 1—7 of this title * * *.' 26 Stat. 209, 15 U.S.C. § 4, 15 U.S.C.A. § 4.
2
Section 3 of the Shipping Act of 1916 created the Shipping Board. 39 Stat. 728, 729, 46 U.S.C.A. § 804 note. Through several steps its functions have come to its present successor, the Federal Maritime Board. By Executive Order No. 6166, June 10, 1933, § 12, 5 U.S.C.A. § 132 note, its functions were transferred to the United States Shipping Board Bureau in the Department of Commerce. In 1936 Congress created the United States Maritime Commission, 49 Stat. 1985, 1987, 46 U.S.C. § 1114, 46 U.S.C.A. § 1114; and in 1950 the present Federal Maritime Board was established. Reorganization Plan No. 21 of 1950, 15 Fed.Reg. 3178 3180, 46 U.S.C.A. § 1111 note.
3
39 Stat. 728, 46 U.S.C. § 801 et seq., 46 U.S.C.A. § 801 et seq.
4
The irrelevance of the failure to file the rates themselves with the Board was laid bare in United States Navigation Co. v. Cunard Steamship Co., 284 U.S. 474, 486—487, 52 S.Ct. 247, 251, 76 L.Ed. 408: 'If there be a failure to file an agreement as required by section 15, the Board, as in the case of other violations of the act, is fully authorized by section 22, supra, to afford relief upon complaint or upon its own motion. Its orders, in that respect, as in other respects, are then, under section 31, for the first time, open to a judicial proceeding to enforce, suspend, or set them aside in accordance, generally, with the rules and limitations announced by this court in respect of like orders made by the Interstate Commerce Commission.'
5
39 Stat. 728, 736, 46 U.S.C. § 821, 46 U.S.C.A. § 821.
1
The remedy provided by § 22 of the Shipping Act is for 'any violation of this Act.' The charge in the present case is a violation of the Sherman Act.
2
There is less room for expertise where the rates used by the steamship companies are unfiled rates or unlawful rates. Cf. U.S. Navigation Co. v. Cunard S.S. Co., 284 U.S. 474, 52 S.Ct. 247, 76 L.Ed. 408.
| 89
|
343 U.S. 90
72 S.Ct. 497
96 L.Ed. 769
LILLY et ux.v.COMMISSIONER OF INTERNAL REVENUE.
No. 158.
Argued Dec. 3, 1951.
Decided March 10, 1952.
Mr. Randolph E. Paul, New York City, for petitioners.
Mr. Philip B. Perlman, Sol. Gen., Washington, D.C., for respondent.
Mr. Justice BURTON delivered the opinion of the Court.
1
Petitioners, Thomas B. Lilly and Helen W. Lilly, his wife, were engaged in the optical business in North Carolina and Virginia in 1943 and 1944. Pursuant to agreements reflecting an established and widespread practice in that industry in those localities, they paid to the respective doctors, who prescribed the eyeglasses which they sold, one-third of the retail sales price received for the glasses. The question here is whether such payments were deductible by petitioners as ordinary and necessary business expenses under § 23(a)(1)(A) of the Internal Revenue Code.1 For the reasons hereafter stated we hold that they were.
2
Petitioners owned and operated as partiners the City Optical Company with offices in Wilmington, Fayetteville and Greensboro, North Carolina, and Richmond, Virginia. Petitioner Helen W. Lilly also owned and operated the Duke Optical Company in Fayetteville.
3
Since long before 1922 when Thomas B. Lilly established his business in Wilmington, eye doctors, in that locality and to a substantial extent throughout comparable communities in North Carolina, Virginia and elsewhere in the United States, not only examined their patients' eyes and prescribed glasses, but also sold them the glasses. The doctors bought the frames and lenses at wholesale, prepared and fitted the glasses to the patients and sold the glasses at a profit.
4
Lilly and other opticians offered to fill the prescriptions for the doctors and to supply and fit the frames to the patients. To compensate the doctors for their loss of profit on the sales, the opticians generally paid the doctors one-third of the retail price of the glasses. While information as to this arrangement was not volunteered to the patients, it was freely disclosed on inquiry. The doctors made it a practice to ask their patients to bring in their new glasses for verification of the prescriptions and to enable the doctors to see that the frames were properly fitted. Without further charge, they made whatever reexaminations and modifications were needed.
5
For income tax purposes, petitioners treated their payments to the doctors as ordinary and necessary expenses of carrying on business and deducted them from their gross incomes. The doctors, in turn, included them in their taxable gross incomes. However, in 1943 and 1944, the respondent Commissioner of Internal Revenue disallowed these deductions in petitioner's returns and thereby increased petitioners' taxable income as follows:
City Optical
Duke Optical
Company
Company
1942..........$57,063.452
1943.......... 61,601.95.$6,568.87
1944.......... 60,021.65. 4,798.35
6
The Tax Court sustained the Commissioner on the ground that the payments to the doctors were contrary to public policy. One judge dissented. 14 T.C. 1066. The resulting tax deficiencies totaled $124,107.78. The Court of Appeals affirmed. 188 F.2d 269. We granted certiorari, 342 U.S. 808, 72 S.Ct. 45, to resolve the disputed question of statutory construction and to pass upon the application to these facts of the principles announced in Textile Mills Corp. Securities v. Commissioner of Internal Revenue, 314 U.S. 326, 62 S.Ct. 272, 86 L.Ed. 249, and Commissioner of Internal Revenue v. Heininger, 320 U.S. 467, 64 S.Ct. 249, 88 L.Ed. 171.
7
The facts are not in dispute. The payments to the doctors were made by petitioners monthly in the regular course of their business. Under the long-established practice in the optical industry in the localities where petitioners did business, these payments, in 1943 and 1944, were normal, usual and customary in size and character. The transactions from which they arose were of common or frequent occurrence in the type of business involved. They reflected a nationwide practice.3 Consequently, they were 'ordinary' in the generally accepted meaning of that word. See Deputy v. Du Pont, 308 U.S. 488, 495, 60 S.Ct. 363, 367, 84 L.Ed. 416; Welch v. Helvering, 290 U.S. 111, 114, 54 S.Ct. 8, 9, 78 L.Ed. 212.
8
The payments likewise were 'necessary' in the generally accepted meaning of that word. It was through making such payments that petitioners had been able to establish their business. Discontinuance of the payments would have meant, in 1943 or 1944, either the resumption of the sale of glasses by the doctors or the doctors' reference of their patients to competing opticians who shared profits with them. Several doctors testified that they had recommended petitioners and petitioners' competitor, the American Optical Company, simultaneously. Both were sharing profits with the doctors on substantially the same basis. If either had stopped making the payments while the other continued them, there is no reason to doubt that the doctors thereafter would have omitted their recommendation of the nonpaying optician. In 1943 and 1944 the continuance of these payments was as essential to petitioners as were their other business expenses. As has been said of legal expenses under somewhat comparable circumstances, 'To say that this course of conduct and the expenses which it involved were extraordinary or unnecessary would be to ignore the ways of conduct and the forms of speech prevailing in the business world.' Commissioner of Internal Revenue v. Heininger, 320 U.S. 467, 472,4 64 S.Ct. 249, 253, 88 L.Ed. 171.
9
There is no statement in the Act, or in its accompanying regulations, prohibiting the deduction of ordinary and necessary business expenses on the ground that they violate or frustrate 'public policy.'
10
The Tax Court in the instant case made no finding of fact that the payments to the doctors were not ordinary and necessary business expenses. It sustained the Commissioner's disallowance of their deductibility because it held that, as a matter of law, the contracts under which the payments were made violated public policy.5
11
We do not have before us the issue that would be presented by expenditures which themselves violated a federal or state law or were incidental to such violations.6 In such a case it could be argued that the outlawed expenditures, by virtue of their illegality, were not 'ordinary and necessary' business expenses within the meaning of § 23(a)(1)(A).7
12
In Textile Mills Securities Corp. v. Commissioner of Internal Revenue, 314 U.S. 326, 62 S.Ct. 272, 86 L.Ed. 249, this Court accepted an interpretation of that section by a Treasury Regulation which disallowed the deduction of certain expenditures for lobbying purposes. In doing so, the Court referred to the fact that some types of lobbying expenditures had long been condemned by it, and that the interpretative regulation had itself been in effect many years with congressional acquiescence. The instant case does not come within that precedent.
13
In Commissioner of Internal Revenue v. Heininger, 320 U.S. 467, 64 S.Ct. 249, 88 L.Ed. 171, this Court was asked to go further and to disallow certain attorneys' fees and other legal expenses. They were reasonable in amount and had been lawfully incurred by a licensed dentist (1) in resisting the issuance by the Postmaster General of a fraud order which would have destroyed the dentist's business and (2) in connection with subsequent proceedings on judicial review of the same controversy. While the services resulted in an injuntion which stayed the order during the time that the taxable income in question was received, the final result of the litigation was unsuccessful for the taxpayer. Nevertheless, the expenditures were permitted to be deducted as ordinary and necessary expenses of the taxpayer's business. The opinion in that case reviews the position of the Bureau of Internal Revenue, the Board of Tax Appeals and the federal courts. Id., 320 U.S. at pages 473—474, 64 S.Ct. at page 253. It refers to the narrowing of 'the generally accepted meaning of the language used in Section 23(a) in order that tax deduction consequences might not frustrate sharply defined national or state policies proscribing particular types of conduct.' (Emphasis supplied.) Id., 320 U.S. at page 473, 64 S.Ct. at page 253. It concludes that the 'language of Section 23(a) contains no express reference to the lawful or unlawful character of the business expenses which are declared to be deductible. * * * If the respondent's litigation expenses are to be denied deduction, it must be because allowance of the deduction would frustrate the sharply defined policies of 39 U.S.C. §§ 259 and 732, 39 U.S.C.A. §§ 259, 732, which authorize the Postmaster General to issue fraud orders.' Id., 320 U.S. at page 474, 64 S.Ct. at page 254. Neither that decision nor the rule suggested by it requires disallowance of petitioners' expenditures as deductions in the instant case.
14
Assuming for the sake of argument that, under some circumstances, business expenditures which are ordinary and necessary in the generally accepted meanings of those words may not be deductible as 'ordinary and necessary' expenses under § 23(a)(1)(A) when they 'frustrate sharply defined national or state policies proscribing particular types of conduct', supra, nevertheless the expenditures now before us do not fall in that class. The policies frustrated must be national or state policies evidenced by some governmental declaration of them. In 1943 and 1944 there were no such declared public policies proscribing the payments which were made by petitioners to the doctors.
15
Customs and the actions of organized professional organizations have an appropriate place in determining in a factual sense what are ordinary and necessary expenses at a given time and place. For example, they materially affect competitive standards which determine whether certain expenditures are in fact ordinary and necessary. Evidence of them is admissible on that issue. They do not, however, in themselves constitute the 'sharply defined national or state policies' the frustration of which may, as a matter of law, preclude the deductibility of an expense under § 23(a)(1)(A).
16
We voice no approval of the business ethics or public policy involved in the payments now before us. We recognize the province of legislatures to translate progressive standards of professional conduct into law and we note that legislation has been passed in recent years in North Carolina and other states outlawing the practice here considered.8 We recognize also the organized activities of the medical profession in dealing with the subject.9 A resulting abolition of the practice will reflect itself in the tax returns of the parties without the retroactive hardship complained of here.10
17
The judgment of the Court of Appeals is reversed and the cause remanded with directions to remand to the Tax Court with instructions to set aside its judgment insofar as it is inconsistent with this opinion.
18
It is so ordered.
19
Judgment of Court of Appeals reversed and cause remanded to Tax Court with instructions.
20
Mr. Justice DOUGLAS took no part in the consideration or decision of this case.
1
'§ 23. Deductions from gross income.
'In computing net income there shall be allowed as deductions:
'(a) Expenses.—
'(1) Trade or business expenses.—
'(A) In General.—All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business * * *.' 53 Stat. 12, 56 Stat. 819, 26 U.S.C. § 23(a)(1)(A), 26 U.S.C.A. § 23(a)(1)(A).
2
The year 1942 was involved in the calculation of the tax for 1943 because of sec. 6 of the Current Tax Payment Act of 1943, 57 Stat. 145-149, 26 U.S.C.A. sec. 1622 note.
3
The American Optical Company, with more than 250 outlets distributed over 47 states, followed this practice, both in competition with petitioners and elsewhere. See also, Snell, Some Principles of Medical Ethics Applied to the Practice of Ophthalmology, 117 A.M.A.J. 497—499 (1941); 'What Do You Pay for Eyeglasses?' Fortune Magazine, Oct. 1940, p. 103.
4
'* * * Without this expense, there would have been no business. Without the business, there would have been no income. Without he income, there would have been no tax. To say that this expense is not ordinary and necessary is to say that that which gives life is not ordinary and necessary.' Heininger v. Commissioner of Internal Revenue, 7 Cir., 133 F.2d 567, 570.
5
'We conclude that the payments under the contracts between the two optical businesses, composed of petitioners, and the oculists are not deductible as ordinary and necessary expenses because the contracts under which these payments were made violated public policy.' (Emphasis supplied.) 14 T.C. at page 1086.
6
Deductions to cover penalties for unlawful conduct were disallowed in Commissioner of Internal Rvenue v. Longhorn Portland Cement Co., 5 Cir., 148, F.2d 276 (penalties for violation of state antitrust laws); and Great Northern R. Co. v. Commissioner of Internal Revenue, 8 Cir., 40 F.2d 372 (penalties against railroad for violating federal statutes or regulations). Cf. Jerry Rossman Corp. v. Commissioner of Internal Revenue, 2 Cir., 175 F.2d 711, 713—714 (where an overcharge under the Emergency Price Control Act, 50 U.S.C.A.Appendix, § 901 et seq., was allowed to be deducted because it did not frustrate any 'sharply defined policies' of the Act). As to deductibility of legal fees incident to the defense of a taxpayer against charges of illegal conduct, see Commissioner of Internal Revenue v. Heininger, 320 U.S. 467, 64 S.Ct. 249, 88 L.Ed. 171, Heininger v. Commissioner of Internal Revenue, 7 Cir., 133 F.2d 567; Kornhauser v. United States, 276 U.S. 145, 48 S.Ct. 219, 72 L.Ed. 505; Commissioner of Internal Revenue v. Longhorn Portland Cement Co., supra; 4 Mertens, Law of Federal Income Taxation, 384—389; and see generally, Note, 54 Harv.L.Rev. 852—860.
7
The Government calls attention to its prosecution of certain other opticians in other states, in 1946, for violations of the Sherman Antitrust Act, 15 U.S.C.A. §§ 1—7, 15 note, due to price-fixing agreements made with oculists in the course of interstate commerce. The consent decrees in those cases lend little support to the Government's contention that the payments made by petitioners in 1943 and 1944 in North Carolina and Virginia were not deductible. In fact, the recitals in those decrees tend to confirm the existence of a long-established, widespread, undisturbed practice of the kind described. United States v. Bausch & Lomb Optical Co., D.C., 97 F.Supp. 71; United States v. American Optical Co., D.C., 97 F.Supp. 66; United States v. House of Vision-Belgard-Spero, Inc., Civil Action No. 48C 607; and United States v. Uhlemann Optical Co. of Illinois, Civil Action No. 48C 608 (all in U.S.D.C.N.D.Ill.).
8
Remington's Wash.Rev.Stat., 1949 Supp., § 10185—14; Deering's Cal. Business and Professions Code, 1951, §§ 650, 652; N.C.Laws 1951, c. 1089, §§ 21, 23.
9
The present trend may lead to the complete abolition of the practice. If so, its abolition will have been accomplished largely by the direct action of those qualified to pass judgment on its justification. This gradually increasing opposition to the practice bears witness to the widespread existence of the practice in such recent times as 1943 and 1944. See Resolution of Section on Ophthalmology of the American Medical Association adopted in June, 1924, but not then presented to the A.M.A. House of Delegates, quoted in 117 A.M.A.J. 498 (1941); Address of Chairman Albert C. Snell, M.D., before the Section on Ophthalmology, 117 A.M.A.J. 497—499 (1941); Principles of Medical Ethics of the American Medical Association (1943 and 1949); editorials in 131 A.M.A.J. 1128 (1946); 136 A.M.A.J. 176—177 (1948).
10
The payments made to the doctors in the instant case, and disallowed as deductions by the courts below, amounted to between 56% and 72% of petitioners' taxable business income. The income thus taxed had been transferred long ago to the doctors and they had paid their income tax on it.
| 1112
|
342 U.S. 519
72 S.Ct. 509
96 L.Ed. 541
FRISBIEv.COLLINS.
No. 331.
Argued Jan. 28, 1952.
Decided March 10, 1952.
Rehearing Denied April 28, 1952.
See 343 U.S. 937, 72 S.Ct. 768.
Mr. Edmund E. Shepherd, Lansing, Mich., for petitioner.
Mr. A. Stewart Kerr, Detroit, Mich., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
Acting as his own lawyer,1 the respondent Shirley Collins brought this habeas corpus case in a United States District Court seeking release from a Michigan state prison where he is serving a life sentence for murder. His petition alleges that while he was living in Chicago, Michigan officers forcibly seized, handcuffed, blackjacked and took him to Michigan. He claims that trial and conviction under such circumstances is in violation of the Due Process Clause of the Fourteenth Amendment and the Federal Kidnaping Act,2 and that therefore his conviction is a nullity.
2
The District Court denied the writ without a hearing on the ground that the state court had power to try respondent 'regardless of how presence was procured.' The Court of Appeals, one judge dissenting, reversed and remanded the cause for hearing. 6 Cir., 189 F.2d 464. It held that the Federal Kidnaping Act had changed the rule declared in prior holdings of this Court, that a state could constitutionally try and convict a defendant after acquiring jurisdiction by force.3 To review this important question we granted certiorari. 342 U.S. 865, 72 S.Ct. 112.
3
We must first dispose of the state's contention that the District Court should have denied relief on the ground that respondent had an available state remedy. This argument of the state is a little cloudy, apparently because of the state attorney general's doubt that any state procedure used could possibly lead to the granting of relief. There is no doubt that as a general rule federal courts should deny the writ to state prisoners if there is 'available State corrective process'. 62 Stat. 967, 28 U.S.C. § 2254, 28 U.S.C.A. § 2254.4 As explained in Darr v. Burford, 339 U.S. 200, 210, 70 S.Ct. 587, 593, 94 L.Ed. 761, this general rule is not rigid and inflexible; district courts may deviate from it and grant relief in special circumstances. Whether such circumstances exist calls for a factual appraisal by the court in each special situation. Determination of this issue, like others, is largely left to the trial courts subject to appropriate review by the courts of appeals.
4
The trial court, pointing out that the Michigan Supreme Court had previously denied relief, apparently assumed that no further state corrective process was available5 and decided against respondent on the merits. Failure to discuss the availability of state relief may have been due to the fact that the state did not raise the question; indeed the record shows no appearance of the state.6 The Court of Appeals did expressly consider the question exhaustion of state remedies. It found the existence of 'special circumstances' which required prompt federal intervention 'in this case.' It would serve no useful purpose to review those special circumstances in detail. They are peculiar to this case, may never come up again, and a discussion of them could not give precision to the 'special circumstances' rule. It is sufficient to say that there are sound arguments to support the Court of Appeals' conclusion that prompt decision of the issues raised was desirable. We accept its findings in this respect.
5
This Court has never departed from the rule announced in Ker v. Illinois, 119 U.S. 436, 444, 7 S.Ct. 225, 229, 30 L.Ed. 421, that the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court's jurisdiction by reason of a 'forcible abduction.'7 No persuasive reasons are now presented to justify overruling this line of cases. They rest on the sound basis that due process of law is satisfied when one present in court is convicted of crime after having been fairly apprized of the charges against him and after a fair trial in accordance with constitutional procedural safeguards. There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will.
6
Despite our prior decisions, the Court of Appeals, relying on the Federal Kidnaping Act, held that respondent was entitled to the writ if he could prove the facts he alleged. The Court thought that to hold otherwise after the passage of the Kidnaping Act 'would in practical effect lend encouragement to the commission of criminal acts by those sworn to enforce the law.' (189 F.2d 468) In considering whether the law of our prior cases has been changed by the Federal Kidnaping Act, we assume, without intimating that it is so, that the Michigan officers would have violated it if the facts are as alleged. This Act prescribes in some detail the severe sanctions Congress wanted it to have. Persons who have violated it can be imprisoned for a term of years or for life; under some circumstances violators can be given the death sentence. We think the Act cannot fairly be construed so as to add to the list of sanctions detailed a sanction barring a state from prosecuting persons wrongfully brought to it by its officers. It may be that Congress could add such a sanction.8 We cannot.
7
The judgment of the Court of Appeals is reversed and that of the District Court is affirmed.
8
It is so ordered.
9
Judgment of Court of Appeals reversed.
1
We appointed counsel to represent respondent in this Court. 342 U.S. 892, 72 S.Ct. 199.
2
47 Stat. 326, as amended, 18 U.S.C. § 1201, 18 U.S.C.A. § 1201.
3
Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421; Mahon v. Justice, 127 U.S. 700, 8 S.Ct. 1204, 32 L.Ed. 283. See also Lascelles v. Georgia, 148 U.S. 537, 13 S.Ct. 687, 37 L.Ed. 549; In re Johnson, 167 U.S. 120, 17 S.Ct. 735, 42 L.Ed. 103.
4
'An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner. (Emphasis added.)
'An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.'
5
The Court said, 'Petitioner originally filed a petition for a writ of habeas corpus in the Supreme Court of the State of Michigan which was denied on June 22, 1949. He then filed a petition for a iwrit in this District, on the ground that the complaint in the state court action was defective and that a faulty warrant was issued for his arrest, claiming further that he was kidnapped by Michigan Police authorities in Chicago, Illinois, and brought to Michigan for trial. This petition was also denied.'
6
So far as the record shows, the state's first objection to federal court consideration of this case was made after the Court of Appeals decided in respondent's favor. A motion for rehearing then filed alleged that respondent had made several futile efforts to have his conviction reviewed. The motion also denied that the particular ground here relied on had previously been raised.
7
See cases cited, supra, note 2.
8
Cf. Mahon v. Justice, supra, n. 3, 127 U.S. 705, 8 S.Ct. 1207.
| 01
|
342 U.S. 524
72 S.Ct. 525
96 L.Ed. 547
CARLSON et al.v.LANDON, District Director of Immigration & Naturalization, United States Department of Justice. BUTTERFIELD, Director of Immigration & Naturalization Service, Detroit, Mich. v. ZYDOK.
Nos. 35, 136.
Argued Nov. 26, 1951.
Decided March 10, 1952.
Rehearing Denied June 9, 1952.
See 343 U.S. 988, 72 S.Ct. 1069.
[Syllabus from pages 524-525 intentionally omitted]
No. 35: Mr. John T. McTernan, Los Angeles, Cal., for petitioners.
Mr. John F. Davis, Washington, D.C., for respondent.
No. 136:
Mr. John F. Davis, Washington, D.C., for petitioner.
Mrs. Carol King, New York City, for respondent.
Mr. Justice REED delivered the opinion of the Court.
1
These cases present a narrow question with several related issues. May the Attorney General, as the executive head of the Immigration and Naturalization Service,1 after taking into custody active alien communists on warrants,2 charging either membership in a group that advocates the overthrow by force of this Government3 or inclusion in any prohibited classes of aliens,4 continue them in custody without bail, at his discretion pending determination as to their deportability, under § 23 of the Internal Security Act?5 Differing views of the Courts of Appeals led us to grant certiorari. 342 U.S. 807, 72 S.Ct. 26; 342 U.S. 810, 72 S.Ct. 42.
2
I. Facts.—The four petitioners in case No. 35 were arrested under warrants, issued after the enactment of the Internal Security Act of 1950, charging each with being an alien who was a member of the Communist Party of the United States.6 The warrants directed that they be held in custody,7 pending determination of deportability.8 Petitions for habeas corpus were promptly filed alleging that the detention without bond was in violation of the Due Process Clause of the Fifth Amendment9 and the Eighth Amendment to the Constitution of the United States, and that § 20 of the Immigration Act, as amended, was also unconstitutional. See note 5, supra. The allegation appears below.10
3
Respondent filed returns defending his orders of detention on the ground that there was reasonable cause to believe that petitioners' release would be prejudicial to the public interest and would endanger the welfare and safety of the United States. These returns were countered by petitioners with allegations of their many years' residence spent in this country without giving basis for fear of action by them inimical to the public welfare during the pendency of their deportation proceedings, their integration into community life through marriage and family connections, and their meticulous adherence to the terms of previous bail, allowed under a former warrant charging deportability. See note 8, supra. On consideration of these undenied allegations, the trial court determined that the Director had not been shown to have abused his discretion.11 This order was reversed on the ground that the Director 'must state some fact upon which a reasonable person could logically conclude that the denial of bail is required to protect the country or to secure the alleged alien's presence for deportation should an order to that effect be the result of the hearing.'12
4
On rehearing, the Director made allegation, supported by affidavits, that the Service's dossier of each petitioner contained evidence indicating to him that each was at the time of arrest a member of the Communist Party of the United States and had since 1930 participated or was then actively participating in the Party's indoctrination of others to the prejudice of the public interest. There was no denial of these allegations by any of the petitioners, except Hyun, or any assertion that any of them had completely severed all Communist affiliations or connections.13 As to Hyun the denial was formal and did not include any affidavit denying the facts stated in the Director's affidavit. As the allegations are set out by the Court of Appeals in the carefully detailed opinion of Circuit Judge Stephens, we refrain from any further restatement here.14 The Court of Appeals affirmed the District Court's determination that there was substantial evidence to support the discretion exercised in denying bail.
5
Respondent Zydok, in case No. 136, was arrested in August 1949 under a recent warrant charging that he was subject to deportation as an alien with membership in an organization advocating the violent overthrow of the Government. Act of October 16, 1918, as amended, 8 U.S.C. (1946 ed.) § 137, 8 U.S.C.A. § 137. At that time he was released on $2,000 bail. Later a deportation hearing was held by the Immigration and Naturalization Service but this Court's decision in Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616, necessitated a second deportation hearing.
6
After the effective date, September 23, 1950, of the Internal Security Act of 1950, 64 Stat. 987, respondent was again taken into custody by petitioner on the 1949 warrant, pursuant to radiogram direction from the Acting Commissioner of Immigration and Naturalization referring to § 20 of the Immigration Act of 1917, as amended by § 23 of the Internal Security Act, 8 U.S.C.A. § 156. The respondent was held without bail by petitioner under an order from the Acting Commissioner of Immigration. The rearrest was based on § 22 of the Internal Security Act of 1950 which provides for the deportation of aliens who are members of or affiliated with the Communist Party. 8 U.S.C. (Supp. IV) § 137, 8 U.S.C.A. § 137.
7
Thereupon respondent filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of Michigan, challenging the validity of his detention without bail. The District Court found that petitioner was an alien and had been and was on arrest a member of the Communist Party. The court determined that there had been no abuse of administrative discretion in refusing bail and denied the petition for habeas corpus, 94 F.Supp. 338.15
8
The Court of Appeals for the Sixth Circuit, 187 F.2d 802, reversed the District Court, holding that in determining denial of bail the Attorney General could not rest on membership alone in the Communist Party but was under the duty to consider also the likelihood that the alien would appear when ordered to do so under the circumstances as developed in the habeas corpus hearing. The court thought the failure of the Attorney General to allow bail was an abuse of discretion.
9
That court agreed that the District Court was correct in finding that Zydok was a member of the Communist Party and had been in 1949 the financial secretary of its Hamtramck Division. The respondent's testimony justifies the District Court's finding set out in the margin.16 The record shows other information in the files of the Attorney General, such as attendance at closed meetings of the Party and the Michigan State Convention. The opinion succinctly sets out the facts concerning respondent's integration into American life. We adopt that statement.17 It was said: 'Discretion does not mean decision upon one particular fact or set of facts. It means rather a just and proper decision in view of all the attending circumstances. The Styria v. Morgan, 186 U.S. 1, 9, 22 S.Ct. 731 (734), 46 L.Ed. 1027. There are many circumstances which involve decision.' 187 F.2d 802, 803.
10
The Court of Appeals concluded: 'We think that a fair consideration of the factors above set out in their aggregate require that appellant should have been granted bail in some reasonable amount. This view is more nearly in accordance with the spirit of our institutions as it relates even to those who seek protection from the laws which they incongruously seek to destroy. See Carlson v. Landon, Dist. Director, 9 Cir., 186 F.2d 183; United States ex rel. Potash v. Dist. Director, 2 Cir., 169 F.2d 747, 752.' 187 F.2d 804.
11
II. The Issues.—Petitioners in No. 35, the Carlson case, and respondent in No. 136, the Zydok case, seek respectively reversal or affirmance principally on the same grounds. It is urged that the denial of bail to each was arbitrary and capricious, a violation of the Fifth Amendment; that where there is no evidence to justify a fear of unavailability for the hearings or for the carrying out of a possible judgment of deportation, denial of bail under the circumstances of these cases is an abuse of discretion and violates a claimed right to reasonable bail secured by the Eighth Amendment to the Constitution. Zydok urges, also, that there was an abuse of discretion in rearresting him, when there was no change of circumstances, after his previous release under bond on the same warrant. There are other minor contentions as to irregularities in the proceedings that appear to us immaterial to our consideration of these cases.
12
The basis for the deportation of presently undesirable aliens resident in the United States is not questioned and requires no reexamination. When legally admitted, they have come at the Nation's invitation, as visitors or permanent residents, to share with us the opportunities and satisfactions of our land. As such visitors and foreign nationals they are entitled in their persons and effects to the protection of our laws. So long, however, as aliens fail to obtain and maintain citizenship by naturalization, they remain subject to the plenary power of Congress to expel them under the sovereign right to determine what noncitizens shall be permitted to remain within our borders.18
13
Changes in world politics and in our internal economy bring legislative adjustments affecting the rights of various classes of aliens to admission and deportation.19 The passage of the Internal Security Act of 1950 marked such a change of attitude toward alien members of the Communist Party of the United States. Theretofore there was a provision for the deportation of alien anarchists and other aliens, who are or were members of organizations devoted to the overthrow by force and violence of the Government of the United States, but the Internal Security Act made Communist membership alone of aliens a sufficient ground for deportation.20 The reasons for the exercise of power are summarized in Title I of the Internal Security Act. It is sufficient here to print § 2(15), 50 U.S.C.A. § 781(15).21 We have no doubt that the doctrines and practices of Communism clearly enough teach the use of force to achieve political control to give constitutional basis, according to any theory of reasonableness or arbitrariness, for Congress to expel known alien communists under its power to regulate the exclusion, admission and expulsion of aliens.22 Congress had before it evidence of resident aliens' leadership in communist domestic activities sufficient to furnish reasonable ground for action against alien resident Communists. The bar against the admission of Communists cannot be differentiated as a matter of power from that against anarchists upheld unanimously half a century ago in the exclusion of Turner.23 Since '(i)t is thoroughly established that Congress has power to order the deportation of aliens whose presence in the country it deems hurtful,'24 the fact that petitioners, and respondent Zydok, were made deportable after entry is immaterial. They are deported for what they are now, not for what they were.25 Otherwise, when an alien once legally became a denizen of this country he could not be deported for any reason of which he had not been forewarned at the time of entry. Mankind is not vouchsafed sufficient foresight to justify requiring a country to permit its continuous occupation in peace or war by legally admitted aliens, even though they never violate the laws in effect at their entry. The protection of citizenship is open to those who qualify for its privileges. The lack of a clause in the Constitution specifically empowering such action has never been held to render Congress impotent to deal as a sovereign with resident aliens.26
14
III. Constitutionality.—A. Arbitrary, capricious, abuse of discretion.—The power to expel aliens, being essentially a power of the political branches of government, the legislative and executive, may be exercised entirely through executive officers, 'with such opportunity for judicial review of their action as congress may see fit to authorize or permit.' This power is, of course, subject to judicial intervention under the 'paramount law of the constitution.'27
15
Deportation is not a criminal proceeding and has never been held to be punishment. No jury sits. No judicial review is guaranteed by the Constitution.28 Since deportation is a particularly drastic remedy where aliens have become absorbed into our community life,29 congress has been careful to provide for full hearing by the Immigration and Naturalization Service before deportation. Such legislative provision requires that those charged with that responsibility exercise it in a manner consistent with due process.30 Detention is necessarily a part of this deportation procedure. Otherwise aliens arrested for deportation would have opportunities to hurt the United States during the pendency of deportation proceedings. Of course purpose to injure could not be imputed generally to all aliens subject to deportation, so discretion was placed by the 1950 Act in the Attorney General to detain aliens without bail, as set out in note 5, supra.31
16
The change in language seems to have originated in H.R. 10, 81st Cong., 1st Sess., introduced by Representative Sam Hobbs of Alabama on January 3, 1949. It was intended to clarify the procedure in dealing with deportees and to 'expressly authorize the Attorney General, in his discretion, to hold arrested aliens in custody.'32 The need for clarification arose from varying interpretations of the authority to grant bail under the former bail provision. Note 31, supra. In Prentis v. Manoogian, 16 F.2d 422, 424, the Court of Appeals for the Sixth Circuit had held that by the earlier provision 'Congress intended to grant to the alien a right, and that its failure to follow with some such phrase as 'at the discretion of the commissioner' vests the discretion to avail himself of the opportunity afforded in the alien, and not the discretion to allow bail in the commissioner or director.' On the other hand in United States ex rel. Zapp v. District Director, 120 F.2d 762, the Court of Appeals for the Second Circuit construed the provision to the contrary. It said: 'The natural interpretation of the language used, that the alien 'may be released under a bond,' would indicate that the release is discretionary with the Attorney General; and that appears to be borne out by other provisions of this section, as well as other sections of the immigration laws, where the choice of words appears to have significance.' 120 F.2d at page 765.
17
In the later case of United States ex rel. Potash v. District Director, 169 F.2d 747, the same court applied its Zapp opinion to explain that the Service's discretion as to bail was not untrammeled but subject to judicial review.33 It was in the light of these cases that Congress inserted in the bail provisions the phrase 'in the discretion of the Attorney General,' the lack of which very phrase the Manoogian case held made bail a right of the detained alien. The present statute does not grant bail as a matter of right.
18
The Government does not urge that the Attorney General's discretion is not subject to any judicial review, but merely that his discretion can be overturned only on a showing of clear abuse.34 We proceed on the basis suggested by the Government. It is first to be observed that the language of the reports is emphatic in explaining Congress' intention to make the Attorney General's exercise of discretion presumptively correct and unassailable except for abuse. We think the discretion reposed in the Attorney General is at least as great as that found by the Second Circuit in the Potash case, supra, to be in him under the former bail provision. It can only be overridden where it is clearly shown that it 'was without a reasonable foundation.'
19
The four petitioners in the Carlson case were active in Communist work. In the Zydok case the only evidence is membership in the Party, attendance at closed sessions and the holding of the office of financial secretary of its Hamtramck Division. This evidence goes beyond unexplained membership and shows a degree, minor perhaps in Zydok's case, of participation in Communist activities. As the purpose of the Internal Security Act to deport all alien Communists as a menace to the security of the United States is established by the Internal Security Act itself, Title I, § 2, we conclude that the discretion as to bail in the Attorney General was certainly broad enough to justify his detention to all these parties without bail as a menace to the public interest. As all alien Communists are deportable, like Anarchists, because of Congress' understanding of their attitude toward the use of force and violence in such a constitutional democracy as ours to accomplish their political aims, evidence of membership plus personal activity in supporting and extending the Party's philosophy concerning violence gives adequate ground for detention. It cannot be expected that the Government should be required in addition to show specific acts of sabotage or incitement to subversive action. Such an exercise of discretion is well within that heretofore approved in Knauff v. Shaughnessy, 338 U.S. 537, 541, 70 S.Ct. 309, 311, 94 L.Ed. 317.35 There is no evidence or contention that all persons arrested as deportable under § 22 of the Internal Security Act, note 4, supra, for Communist membership are denied bail. In fact, a report filed with this Court by the Department of Justice in this case at our request shows allowance of bail in the large majority of cases. The refusal of bail in these cases is not arbitrary or capricious or an abuse of power. There is no denial of the due process of the Fifth Amendment under circumstances where there is reasonable apprehension of hurt from aliens charged with a philosophy of violence aganst this Government.
20
B. Delegation of Legislative Power.—This leaves for consideration the constitutionality of this delegation of authority. We consider first the objection to the alleged unbridled delegation of legislative power in that the Attorney General is left without standards to determine when to admit to bail and when to detain. It is familiar law that in such an examination the entire Act is to be looked at and the meaning of the words determined by their surroundings and connections. Congress can only legislate so far as is reasonable and practicable, and must leave to executive officers the authority to accomplish its purpose.36 Congress need not make specific standards for each subsidiary executive action in carrying out a policy.37 The bail provision applies to many classes of deportable aliens other than those named in the classes listed in § 22 of the Internal Security Act. See note 4, supra.38 A wide range of discretion in the Attorney General as to bail is required to meet the varying situations arising from the many aliens in this country.39
21
The policy and standards as to what aliens are subject to deportation are, in general, clear and definite. 8 U.S.C. §§ 137 and 155, 8 U.S.C.A. §§ 137, 155. Specifically when dealing with alien Communists, as in these cases, the legislative standard for deportation is definite. See notes 3 and 4, supra. In carrying out that policy the Attorney General is not left with untrammeled discretion as to bail. Courts review his determination. Hearings are had, and he must justify his refusal of bail by reference to the legislative scheme to eradicate the evils of Communist activity. The legislative judgment of evils calling for the 1950 amendments to deportation legislation is set out in the introductory sections of the Subversive Activities Control Act.40 So far as pertinent to these proceedings, the new legislation was designed to eliminate the subversive activities of resident aliens who seek to inculcate the doctrine of force and violence into the political philosophy of the American people. To this end provision was made for the detention and deportation of certain noncitizens, including members of the Communist Party. When in the judgment of the Attorney General an alien Communist may so conduct himself pending deportation hearings as to aid in carrying out the objectives of the world communist movement, that alien may be detained. Compare Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834, and Bowles v. Willingham, 321 U.S. 503, 515, 64 S.Ct. 641, 647, 88 L.Ed. 892. This is a permissible delegation of legislative power because the executive judgment is limited by adequate standards. The authority to detain without bail is to be exercised within the framework of the Subversive Activities Control Act to guard against Communist activities pending deportation hearings. Cf. Mahler v. Eby, 264 U.S. 32, 40, 44 S.Ct. 283, 286, 68 L.Ed. 549. We do not see that such discretion violates the Due Process Clause of the Fifth Amendment.
22
C. Violation of Eighth Amendment.—The contention is also advanced that the Eighth Amendment to the Constitution, note 9, supra, compels the allowance of bail in a reasonable amount. We have in the preceding sections of this opinion set out why this refusal of bail is not an abuse of power, arbitrary or capricious, and why the delegation of discretion to the Attorney General is not unconstitutional. Here we meet the argument that the Constitution requires by the Eighth Amendment, note 9, supra, the same reasonable bail for alien Communists under deportation charges as it accords citizens charged with bailable criminal offenses. Obviously the cases cited by the applicants for habeas corpus fail flatly to support this argument.41 We have found none that do.
23
The bail clause was lifted with slight changes from the English Bill of Rights Act.42 In England that clause has never been thought to accord a right to bail in all cases,43 but merely to provide that bail shall not be excessive in those cases where it is proper to grant bail. When this clause was carried over into our Bill of Rights, nothing was said that indicated any different concept.44 The Eighth Amendment has not prevented Congress from defining the classes of cases in which bail shall be allowed in this country. Thus in criminal cases bail is not compulsory where the punishment may be death.45 Indeed, the very language of the Amendment fails to say all arrests must be bailable. We think, clearly, here that the Eighth Amendment does not require that bail be allowed under the circumstances of these cases.
24
It should be noted that the problem of habeas corpus after unusual delay in deportation hearings is not involved in this case. Cf. United States ex rel. Potash v. District Director, 2 Cir., 169 F.2d 747, 751.
25
IV. Rearrest.—Finally, respondent Zydok argues that his rearrest on the outstanding warrant, after he had once been released on bai, was improper. The inquiry on habeas corpus is limited to the propriety of Zydok's present detention. McNally v. Hill, 293 U.S. 131, 136, 55 S.Ct. 24, 26, 79 L.Ed. 238. While the Attorney General has made a satisfactory showing that he has good cause for detaining Zydok without bail, no order based on a new warrant has been entered.46 Zydok did not allow the proceedings to run along but objected promptly by habeas corpus to detention under the warrant. It has been said that the rule in criminal cases is that a warrant once executed is exhausted.47 This guards against precipitate rearrest. Where, however, the rearrest comes after the discovery of error in release, a new warrant is not necessarily required.48 State cases have held that an escaped person or one who secured his release by trick may be rearrested without a new warrant.49 Although a warrant for rearrest is required by statute, when a convicted person is paroled his status on violation of the parole is the same as that of an escaped prisoner.50 When a prisoner is out on bond he is still under court control, though the bounds of his confinement are enlarged. His bondsmen are his jailers.51 While the bailsmen may arrest without warrant, the court proceeds under bench warrant to retake a prisoner. Cf. 18 U.S.C. § 3143, 18 U.S.C.A. § 3143.
26
Although in a civil proceeding for deportation the same branch of government issues and executes the warrant, we think the better practice is to require in those cases also a new warrant.
27
The judgment of the Court of Appeals in the Zydok case will be vacated and the cause remanded to the District Court for further proceedings in accordance with this opinion, with directions to order the release of the respondent Zydok unless within a reasonable time in the discretion of the court he is rearrested under a new warrant.52
28
No. 35 is affirmed; No. 136 is vacated.
29
Mr. Justice BLACK, dissenting.
30
Today the Court holds that law-abiding persons, neither charged with nor convicted of any crime, can be held in jail indefinitely, without bail, if a subordinate Washington bureau agent believes they are members of the Communist Party, and therefore dangerous to the Nation because of the possibility of their 'indoctrination of others.' Underlying this harsh holding are past decisions of this Court declaring that Congress may constitutionally direct the summary deportation of aliens for any reason it sees fit. I agree with Mr. Justice DOUGLAS for the reasons he gives in his dissenting opinion in Harisiades v. Shaughnessy, 342 U.S. 580, 598, 72 S.Ct. 512, 523, that these prior declarations should now be reconsidered and rejected. This would dispose of these cases. But the Court today not only adheres to, but greatly expands the constitutional doctrine of the former cases. The Court also relies on the Internal Security Act of 1950, 64 Stat. 987, for its holding. Mr. Justice FRANKFURTER presents strong arguments for construing the Act so as to reach an opposite result. But even if authorized by that Act, as the majority holds, the denial of a right to bail under the circumstances of these cases strikes me as a shocking disregard of the following provisions of the Bill of Rights: Eighth Amendment's ban against excessive bail;1 First Amendment's ban against abridgment of thought, speech and press;2 Fifth Amendment's ban against depriving a person of liberty without due process of law.3 Before a detailed discussion of my several grounds of dissent it is necessary to state the facts and the precise issues the records present.
31
Respondent Zydok, petitioners Carlson and others were all arrested ('detained') in connection with proceedings which might lead to their deportation. A subordinate of the Commissioner of Immigration, not the Attorney General, directed that they be held in prison without bail. Of necessity, consideration of these deportation proceedings by bureaus and courts may last for years. Carlson's has already dragged on for over four years. Moreover, even deportation orders at the end of such proceedings might not end their indeterminate jail sentences since the foreign countries to which they are ordered might refuse to admit them. Such refusals have prevented deportation in thousands of cases.4 Thus denial of bail may well be the equivalent of a life sentence, at least for Zydok, 56 years old, and Carlisle whose health is bad. Such has become the fate of ordinary family people selected and classified, on secret information, as 'dangerous' by Washington bureau agents.
32
Zydok's case illustrates what is happening. He has lived in this country 39 years, owns his home, has violated no law, is 'not likely to engage in any subversive activities,' has a wife, two sons, a daughter and five grandchildren, all born in the United States. Both sons served in the armed services in World War II. Zydok himself, then a waiter, sold about $50,000 worth of U.S. war bonds and 'donated blood on seven occasions to the Red Cross for the United States Army.' This jailing of Zydok, despite a patriotic record of which many citizens could well be proud, is typical of what actually happens when public feelings run high against an unpopular minority.
33
While the Court gives Zydok a momentary technical respite, its holding means that he too, pursuant to the government's present program, can and will be held in jail without bond as a 'dangerous' character. The others, with equally enviable records as law-abiding persons, are not even given a technical respite. Mrs. Stevenson is the wife of a citizen and is the mother of a young man who is also a citizen. Her son has long been subject to attacks of undulant fever. He and his 70-year-old grandmother need Mrs. Stevenson's help as does her husband who does her housework while she is 'detained' as 'dangerous' to our national security. The District Judge tried to persuade the representatives of the Immigration Bureau and the Attorney General to agree for him to enter an order fixing bail for her and for Mr. Carlisle. His request was refused.
34
The record does not leave us in doubt as to why bail was denied Mrs. Stevenson, Mr. Carisle, or any of these allegedly 'dangerous' aliens. Denial was not on the ground that if released they might try to evade obedience to possible deportation orders. The District Judge in No. 35 conceded that 'there is nothing here to indicate the Government is fearful that they are going to leave the jurisdiction'; he said, 'I am not going to release men and women that the Attorney General's office says are security risks'; he also said, 'I am not going to turn these people loose if they are Communists, any more than I would turn loose a deadly germ in this community. If that is my duty let the Circuit Court say so and assume that burden.'5 These remarks to counsel show that he kept these people in jail only because he thought Communists, as such, were too dangerous to the Nation to be allowed to associate with other people. The Court of Appeals' denial of bail was also based on the premise that Communists were too dangerous to the Nation to be left out of jail, not on the premise that deportation would be delayed or frustrated by granting bail. 9 Cir., 187 F.2d 991. And the Solicitor General has admitted here that 'the only evidence advanced to support their detention without bail was that they had been active in the Communist movement.' The majority here also appears to rest on the same basis. It must, unless it is now drawing inferences that some might flee and be unavailable for deportation. As the Government admits, there is not a vestige of support for such an inference.6 Besides, an alien 'who shall willfully fail or refuse to present himself for deportation * * * shall upon conviction be guilty of a felony, and shall be imprisoned not more than ten years * * *.' 64 Stat. 987, 1012.
35
Thus it clearly appears that these aliens are held in jail without bail for no reason except that 'they had been active in the Communist movement.' From this it is concluded that their association with others would so imperil the Nation's safety that they must be isolated from their families and communities. On this premise they would be just as dangerous whether aliens or citizens, deportable or not. Since it is not necessary to keep them in jail to assure their compliance with a deportation order, their imprisonment cannot possibly be intended as an aid to deportation. They are kept in jail solely because a bureau agent thinks that is where Communists should be. A power to put in jail because dangerous cannot be derived from a power to deport. Consequently prior cases holding that Congress has power to deport aliens provide no support at all for today's holding that Congress has power to authorize bureau agents to put 'dangerous' people in jail without privilege of bail.
36
The stark fact is that if Congress can authorize imprisonment of 'alien Communists' because dangerous, it can authorize imprisonment of citizen 'Communists' on the same ground. And while this particular bureau campaign to fill the jails is said to be aimed at 'dangerous' alien Communists only, peaceful citizens may be ensnared in the process. For the bureau agent is not required to prove that a person he throws in jail is an alien, or a Communist, or 'dangerous.' The agent need only declare he has reason to believe that such is the case. The agent may be and here apparently was acting on the rankest hearsay evidence. The secret sources of his 'information' may have been spies and informers, a class not usually rated as the most reliable by people who have had experience with them.7 In this record the nearest approach to any identifiable source of information is that some of the jailed persons had admitted past membership in organizations listed by the Attorney General as 'Communist,' or 'Communist front.' These listings are made by the Attorney General ex parte on secret dossiers containing statements from sources that the Attorney General refuses to reveal. A majority of this Court has held that such listings are illegal. Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817. This alone should be enough to reverse the judgments in No. 35. My own judgment is that Congress has not authorized the Bureau of Immigration to hold people in jail without bond solely because it believes them 'dangerous.' Nor do I think that Congress has power to grant any such authority even if it had attempted to do so.
37
First. Section 23 of the Internal Security Act, 64 Stat. 987, 1011, 8 U.S.C.A. § 156, provides that 'Pending final determination of the deportability of any alien taken into custody under warrant of the Attorney General, such alien may, in the discretion of the Attorney General (1) be continued in custody; or (2) be released under bond in the amount of not less than $500, with security approved by the Attorney General; or (3) be released on conditional parole.' I read this language as attempting to authorize the Attorney General to hold aliens without bail within his discretion. I think that means the Attorney General's discretion, not that of a subordinate in the Bureau of Immigration. This record does not show that these people were jailed by virtue of an exercise of discretion by the Attorney General. Decision to put deportable aliens in jail without bond (with very minor exceptions) was made by subordinates in the Bureau of Immigration. I agree wiht Mr. Justice FRANKFURTER that this decision to jail aliens en masse was not based on the kind of 'discretion' the Act intended. But I further think § 23 should not be construed as permitting the Attorney General to delegate this tremendous power to others.
38
The Government finds a power to so delegate in provisions of the Alien Registration Act of 1940, 8 U.S.C. s 458(a), 8 U.S.C.A. § 458(a), and in the President's Reorganization Plan No. 2 of 1950, 5 U.S.C. (Supp. IV) following § 133z—15, 5 U.S.C.A. § 133z—15 note. These provisions are in such broad general terms that they could be read as allowing the Attorney General to delegate all his discretionary duties. But the gravity of a discretionary power to seize people and keep them in jail without a right of bail warns against implying such an unlimited power to delegate it. It is bad enough to read an Act as vesting even the Nation's chief prosecutor with power to determine what individuals he prosecutes should be held in jail without bail. Delegating and redelegating this dangerous power to subordinates entrusted with duties like those of deputy sheriffs and policemen raises serious procedural due process questions. I am not willing to imply that Congress has granted power to make such delegations which so ominously threaten the liberty of individuals. Consequently, assuming constitutionality of § 23, I would hold that it vests power in the Attorney General alone to decide whether a person should be denied bail.
39
Second. The fifth Amendment commands that no person shall be deprived of liberty without due process of law. I think this provision has been violated here.
40
Surely it is not consistent with procedural due process of law for prosecuting attorneys or their law enforcement subordinates to make final determinations as to whether persons they accuse of something shall remain in jail indefinitely awaiting a decision as to the truthfulness of the accusations against them. In effect that was done here. I have already referred to the trial judge's statement in No. 35 that he was not going to release people the Attorney General deemed to be bad security risks. Moreover, the immigration official's mere belief based on statements coming from unidentified persons was accepted by both trial judges as casting on each alleged 'alien Communist' the burden of proving he was not a Communist by clear and convincing evidence. And their refusal to incriminate themselves by denying the immigration officer's suspicions was accepted as sufficient proof to keep them behind the jail doors. I think that condemning people to jail is a job for the judiciary in accordance with procedural 'due process of law.'8 To farm out this responsibility to the police and prosecuting attorneys is a judicial abdication in which I will have no part.
41
Third. As previously pointed out, the basis of holding these people in jail is a fear that they may indoctrinate people with Communist beliefs. To put people in jail for fear of their talk seems to me to be an abridgment of speech in flat violation of the First Amendment. I have to admit, however, that this is a logical application of recent cases watering down constitutional liberty of speech.9 I also realize that many believe that Communists and 'fellow travelers' should not be accorded any of the First Amendment's protections. My belief is that we must have freedom of speech, press and religion for all or we may eventually have it for none. I further believe that the First Amendment grants an absolute right to believe in any governmental system, discuss all governmental affairs, and argue for desired changes in the existing order. This freedom is too dangerous for bad, tyrannical governments to permit. But those who wrote and adopted our First Amendment weighed those dangers against the dangers of censorship and deliberately chose the First Amendment's unequivocal command that freedom of assembly, petition, speech and press shall not be abridged. I happen to believe this was a wise choice and that our free way of life enlists such respect and love that our Nation cannot be imperiled by mere talk. This belief of mine may and I suppose does influence me to protest whenever I think I see even slight encroachments on First Amendment liberties. But the encroachment here is not small. True it is mainly those alleged to be present or past 'Communists' who are now being jailed for their beliefs and expressions. But we cannot be sure more victims will not be offered up later if the First Amendment means no more than its enemies or even some of its friends believe it does.
42
Fourth. I think § 23 as construed and as here applied violates the command of the Eighth Amendment that 'Excessive bail shall not be required * * *.' Under one of the Government's contentions, which the Court apparently adopts, the Eighth Amendment's ban on excessive bail means just about nothing. That contention is that Congress has power, despite the Amendment, to determine 'whether or not bail may be granted, or must be granted, and the Constitution then forbids the exaction of excessive bail * * *.' Under this contention, the Eighth Amendment is a limitation upon judges only, for while a judge cannot constitutionally fix excessive bail, Congress can direct that people be held in jail without any right to bail at all. Stated still another way, the Amendment does no more than protect a right to bail which Congress can grant and which Congress can take away. The Amendment is thus reduced below the level of a pious admonition. Maybe the literal language of the framers lends itself to this weird, devitalizing interpretation when scrutinized with a hostile eye. But at least until recently, it has been the judicial practice to give a broad, liberal interpretation to those provisions of the Bill of Rights obviously designed to protect the individual from governmental oppression. I would follow that practice here. The Court refuses to do so because (1) the English Bill of Rights 'has never been thought to accord a right to bail in all cases * * *' and (2) 'in criminal cases bail is not compulsory where the punishment may be death.' As to (1): The Eighth Amendment is in the American Bill of Rights of 1789, not the English Bill of Rights of 1689. And it is well known that our Bill of Rights was written and adopted to guarantee Americans greater freedom than had been enjoyed by their ancestors who had been driven from Europe by persecution. See Bridges v. California, 314 U.S. 252, 264—265, 62 S.Ct. 190, 194, 86 L.Ed. 192. As to (2): It is true bail has frequently been denied in this country 'when the punishment may be death.' I fail to see where the Court's analogy between deportation and the death penalty advances its argument unless it is also analogizing the offense of indoctrinating talk to the crime of first degree murder.
43
Another governmental contention is this: 'The bail provisions of the Eighth Amendment and of the statutes relating thereto have always been considered as applicable only to criminal proceedings. Since deportation proceedings are not criminal in character, the Eighth Amendment has no application.' I reject the contention that this constitutional right to bail can be denied a man in jail by the simple device of providing a 'not criminal' label for the techniques used to incarcerate. Imprisonment awaiting determination of whether that imprisonment is justifiable has precisely the same evil consequences to an individual whatever legalistic label is used to describe his plight. Prior to this Amendment's adoption, history had been filled with instances where individuals had been imprisoned and held for want of bail on charges that could not be substantiated. Official malice had too frequently been the cause of imprisonment. The plain purpose of our bail Amendment was to make it impossible for any agency of Government, even the Congress, to authorize keeping people imprisoned a moment longer than was necessary to assure their attendance to answer whatever legal burden or obligation might thereafter be validly imposed upon them. In earlier days of this country there were fond hopes that the bail provision was unnecessary, that no branch of our Government would ever want to deprive any person of bail. On this subject Mr. Justice Story said, 'The provision would seem to be wholly unnecessary in a free government, since it is scarcely possible that any department of such a government would authorize or justify such atrocious conduct.' Story on Constitutional Law, 5th Ed., Vol. 2, p. 650. Perhaps the word 'atrocious' is too strong. I can only say that I regret, deeply regret, that the Court now adds the right to bail to the list of other Bill of Rights guarantees that have recently been weakened to expand governmental powers at the expense of individual freedom.
44
I am for reversing in No. 35 and affirming in No. 136.
45
Mr. Justice FRANKFURTER, whom Mr. Justice BURTON joins, dissenting.
46
If the Attorney General, after the Internal Security Act, had made a general ruling that thereafter he would not allow bail to any alien against whom deportation proceedings were started and who was then a member of the Communist Party—an undiscriminating, unindividualized class determination—it would disregard the clear direction of Congress for this Court not to hold that the Attorney General had exceeded the limits of his discretion. It would wilfully disregard the adjudications on bail in deportation cases which preceded the Act and the unambiguous legislative history of the law based upon this judicial history. Congress unequivocally chose not to give nonreviewable discretionary power to the Attorney General to deny bail. In substance though not formally he has made such a general ruling. The records before us disclose that since the Internal Security Act the Attorney General has in fact followed the general practice of denying bail to all active Communists. Such blanket exercise of the power granted him by the Act calls for review and cannot stand.
47
The controlling questions in this case are: What standards of discretion does the Internal Security Act of 19501 impose upon the Attorney General in granting or denying bail to persons arrested for deportation proceedings; and has the Attorney General here observed those standards? The Government concedes that Congress made reviewable the discretion of the Attorney General on the bail question. This subjection of the Attorney General's action to judicial scrutiny is not to be formally or lightly exercised. The bill which ultimately became § 23 of the Internal Security Act was initially passed by the House with a provision making absolute and unreviewable the Attorney General's action.2 The bill as enacted, however, omitted the finality clause; the Attorney General's authority was thus defined: 'Pending final determination of the deportability of any alien * * * (he) may, in the discretion of the Attorney General (1) be continued in custody; or (2) be released under bond in the amount of not less than $500, with security approved by the Attorney General; or (3) be released on conditional parole.'3 Before the passage of the Act Congress had before it conflicting views of Courts of Appeals: according to Prentis v. Manoogian, 6 Cir., 16 F.2d 422, bail was a matter of the alien's right; the Second Circuit ruled that it was a matter within the Attorney General's discretion subject to judicial review. United States ex rel. Potash v. District Director, 2 Cir., 169 F.2d 747.4 Congress chose the latter view. It deserves emphasis that it was discretion that was given the Attorney General, not power to decide arbitrarily.5
48
In granting the Attorney General discretion subject to judicial review, Congress legislated against a historical background which gives meaning to bail provisions. Only the other day this Court restated the concept of bail traditional in American thought and reflected in the Constitution:
49
'This traditional right to freedom before conviction (or before order for deportation) permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. * * * Since the function of bail is limited, the fixing of bail for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant. * * * To infer from the fact of indictment (or warrant for deportation) alone a need for bail in an unusually high amount is an arbitrary act.' Stack v. Boyle, 342 U.S. 1, 4, 5, 6, 72 S.Ct. 1, 3, 4.
50
'The practice of admission to bail, as it has evolved in Anglo-American law, is not a device for keeping persons in jail upon mere accusation until it is found convenient to give them a trial. On the contrary, the spirit of the procedure is to enable them to stay out of jail until a trial has found them guilty. * * * Each defendant stands before the bar of justice as an individual. * * * Each accused is entitled to any benefits due to his good record, and misdeeds or a bad record should prejudice only those who are guilty of them.' 342 U.S. at pages 7, 8, 9 (concurring opinion), 72 S.Ct. 1, 5, 6.
51
This historical meaning of 'bail,' familiar even to laymen, must infuse our interpretation of the words of a Congress of whom, in fact, a majority were lawyers. When Congress provided for bail, within the Attorney General's discretion, for persons arrested for deportation proceedings, it was extending to resident aliens still lawfully in our midst the same privileges that are granted as a matter of course to dangerous criminals. The factors relevant to the exercise of discretion are factors that pertain to each individual as an individual. 'Discretion is only to be respected when it is conscious of the traditions which surround it and of the limits which an informed conscience sets to its exercise.'6
52
If these aliens, instead of awaiting deportation proceedings, were held for trial under a Smith Act indictment, 18 U.S.C.A. § 2385, they could not be denied bail merely because of the indictment. Stack v. Boyle, supra. Membership in the Communist Party—the charge which is the foundation for the deportation proceedings—is surely not as great a danger as a leading share in a conspiracy to advocate the overthrow of the Government by force, which was the essence of the indictment in Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137. And the opportunity for 'the unhampered preparation of a defense' is quite as important to the alien arrested for deportation proceedings as it is to the Smith Act defendant. We would hestitate to impute to Congress, in the absence of some more explicit command, an intent to make bail more readily available to those held on a serious criminal charge than to those awaiting proceedings to determine the question of deportability. Congress made no such distinction. Instead, it cast the Attorney General's authority in terms descriptive of the customary power of commissioners or district judges in admitting to bail.
53
The factors stated by the Second Circuit in the Potash case, supra, at page 751 of 169 F.2d, which guided the enactment, are presumably the standards which Congress expected to be observed: 'The discretion of the Attorney General * * * is to be reasonably exercised upon a consideration of such factors, among others, as the probability of the alien being found deportable, the seriousness of the charge against him, if proved, the danger to the public safety of his presence within the community, and the alien's availability for subsequent proceedings if enlarged on bail.'
54
Congress thus made provision for a fair assurance of each alien's availability in the event he is eventually ordered deported. There is, however, not the slightest indication in the Government's returns or in the records before us that each petitioner's ties to family and community and each one's behavior under an earlier warrant against him do not assure his presence throughout the deportation proceedings and thereafter. The records affirmatively indicate the contrary. Moreover, in deportation cases—as compared, for example, with prosecutions under the Smith Act—the consideration that the individuals concerned may depart from the country is minimized in significance, first, because compulsory departure from the United States is just what they are contesting, and secondly, if they do depart, the purpose of the deportation proceedings is realized.
55
It would be unfair to Congress to deny that it followed the traditional concept of bail by making 'the danger to the public safety of his presence within the community' a criterion for bailability. No less must it be presumed that Congress required that each criterion should be applied in the traditional manner, that is, by individualized application to each alien. In each case, the alien's anticipated personal conduct—and that alone— must be considered. Also, how expeditiously each deportation proceeding can be concluded, and therefore how long the bail in each case need be in effect, are relevant considerations.
56
But it is argued that, since an introductory section of the Internal Security Act makes a 'legislative finding' of the threat represented by the Party,7 Congress intended membership in the Communist Party alone to serve as a reasonable basis for believing individual aliens too dangerous to leave at large. Such an interpretation renders meaningless the discretion granted the Attorney General wherever the deportation charge is membership in the Communist Party. The argument means that he may exercise discretion as to bail only to deny bail. Congress did not write such a Hobson's choice into law. True, the bail provisions apply to deportation proceedings brought on other grounds. However, the absorbing concern of Congress in the Internal Security Act was with the problem of the Communist Party; that Act for the first time explicitly made membership in the Communist Party a ground for deportation.8 It puts Congress in a stultifying position to suggest that it gave with one hand only to take away with the other.
57
In these cases the Attorney General has not exercised his discretion by applying the standards required of him. He evidently thought himself under compulsion of law and made an abstract, class determination, not an individualized judgment. When the five aliens were arrested originally (one as late as June, 1950), all were released on bail, ranging from $5,000 for one to $1,000 for another; three were released on $2,000 bail. Much is made of the fact that the enactment of the Internal Security Act on September 22, 1950, intervened between the original grant of bail and the subsequent rearrest and detention of the aliens. The only change in that Act relevant to these deportation proceedings was the provision making membership in the Communist Party specifically a basis for deportation.9 New warrants charging membership in the Communist Party at some time after entry were served on the rearrested aliens in Los Angeles, though not on Zydok in Detroit. The immigration authorities were by the Act relieved of proving—in order to make a prima facie case—that the Communist Party is an 'organization * * * that believes in, advises, advocates, or teaches * * * the overthrow by force or violence of the Government.'10 But in the circumstances of today a legislative definition of the Communist Party as an organization advocating violent overthrow of government made little difference in the required proof.11 At any rate, a complete answer is that nowhere—either in his returns to the writs of habeas corpus or elsewhere—has the Attorney General made any assertion that the Internal Security Act eased the proof of deportability, indicating by his silence that such a factor did not influence his judgment.12 The returns in the Los Angeles cases supported the denial of bail solely by the statement, 'said facts cause the said Acting Commissioner to believe that if the said petitioner(s) were enlarged on bail (they) would engage in activities which would be prejudicial to the public interest, and would endanger the welfare and safety of the United States.' The return in Zydok's case stated no reasons for the Attorney General's decision. The only evidence at the hearings was also directed solely to the Communist activities of the aliens.
58
The insubstantiality of the evidence for showing any danger in freeing each individual alien on bail raises ample doubt whether the Attorney General exercised a discretion as instructed by statute. In Zydok's case the claim is that he had been a member of the Communist Party and financial secretary of a Hamtramck, Michigan, section in 1949, a year before his rearrest and denial of bail on October 23, 1950. From Zydok's failure to deny present membership during his testimony, the District Court drew the conclusion that he was 'knowingly and wilfully participating in the Communist movement.' This was clearly a violation of Zydok's privilege against self-incrimination, which he many times claimed.13 But assuming that the Attorney General had evidence before him that Zydok was at present a member of the Communist Party, that alone is insufficient to show danger in freeing him on bail during the deportation proceeding. To deny bail, the Attorney General should have a reasonable basis for believing that the circumstances attending Zydok present too hazardous a risk in leaving him at large.
59
There is also no evidence on the activities of the other four aliens that is more recent than 1949—a year before the issuance of the relevant warrants for deportation and the denials of bail here under review—with the exception of a newspaper article by Carlson published in late 1950. In fact, in the case of Carlisle and Stevenson the Government had no evidence of activity or membership in the Communist Party more recent than the 1930's. Since all these aliens when previously arrested were released on bail, we cannot escape the conclusion that the Attorney General after the enactment of the Internal Security Act did not deny bail from an individualized estimate of 'the danger to the public safety of (each person's) presence within the community.'14
60
We are confirmed in this conclusion by the Attorney General's practice. For we are advised by the Solicitor General that it has been the Government's policy since the Internal Security Act to terminate bail for all aliens awaiting deportation proceedings whom it deems to be present active Communists, barring only those for whom special circumstances of physical condition or family situation compel an exception. The ordinary considerations of availability to respond to the final judgment of the courts have apparently been ruled out by the Attorney General since the enactment of the Internal Security Act. All those whom the Government believes to be active Communists are considered unbailable without individualized consideration of risk from their continued freedom. It must therefore be inferred that the Attorney General acted on the assumption that, because he was convinced that the aliens here were present Communist Party members, they were not bailable. These persons should have the benefit of an exercise of discretion by the Attorney General, freed from any conception that Congress had made them in effect unbailable. We think that the California case should be returned to the District Court for discharge of the four persons detained unless the Attorney General within a reasonable time makes a new determination on the bail question using the standards here outlined. And it Zydok is rearrested under a new warrant, the Attorney General will have a fresh opportunity to exercise his discretion in setting bail.
61
Mr. Justice DOUGLAS, dissenting.
62
My reasons for dissent strike deeper than the bail provisions of the Eighth Amendment. According to the warrants of arrest issued on October 31, 1950, the petitioners in No. 35 are being detained for deportation because they were formerly members of the Communist Party of the United States. Zydok, the respondent in No. 136, was arrested for present Communist Party membership, but no charge has been made that he has been guilty of any seditious conduct or that he has committed any overt act endangering our national security. If the Constitution does not permit expulsion of these aliens for their past actions or present expressions unaccompanied by conduct—and I do not think it does1—then they are illegally detained and should be set free, making the issue of bail meaningless.
63
Mr. Justice BURTON, dissenting.
64
I join the dissenting opinion of Mr. Justice FRANKFURTER and add the suggestion that the Eighth Amendment lends support to the statutory interpretation he advocates. That Amendment clearly prohibits federal bail that is excessive in amount when seen in the light of all traditionally relevant circumstances. Likewise, it must prohibit unreasonable denial of bail. The Amendment cannot well mean that, on the one hand, it prohibits the requirement of bail so excessive in amount as to be unattainable, yet, on the other hand, under like circumstances, it does not prohibit the denial of bail, which comes to the same thing. The same circumstances are relevant to both procedures. It is difficult to believe that Congress now has attempted to give the Attorney General authority to disregard those considerations in the denial of bail.
1
Reorganization Plan No. V, 54 Stat. 1238, 5 U.S.C.A. § 133t note.
2
Sec. 19 of an Act to regulate the immigration of aliens to, and the residence of aliens in, the United States, 39 Stat. 889, February 5, 1917, as amended, 8 U.S.C. § 155, 8 U.S.C.A. § 155: '* * * any alien who shall have entered or who shall be found in the United States in violation of this chapter, or in violation of any other law of the United States; * * * shall, upon the warrant of the Attorney General, be taken into custody and deported. * * *'
3
Act of October 16, 1918, 40 Stat. 1012, as amended, 8 U.S.C., 1946 ed., § 137, 8 U.S.C.A. § 137, see note 15 infra:
'(c) Aliens who believe in, advise, advocate, or teach, or who are members of or affiliated with any organization, association, society, or group, that believes in, advises, advocates, or teaches: (1) the overthrow by force or violence of the Government of the United States or of all forms of law * * *.'
4
Internal Security Act of 1950, September 23, 1950, § 22, subsection 4(a), amending the Act of October 16, 1918, see 8 U.S.C. § 137: 'Any alien who was at the time of entering the United States, or has been at any time thereafter, a member of any one of the classes of aliens enumerated in section 1(1) or section 1(3) of this Act or * * * a member of any one of the classes of aliens enumerated in section 1(2) of this Act, shall, upon the warrant of the Attorney General, be taken into custody and deported in the manner provided in the Immigration Act of February 5, 1917. The provisions of this section shall be applicable to the classes of aliens mentioned in this Act, irrespective of the time of their entry into the United States.' 8 U.S.C.A. § 137—3.
Id., § 22, 8 U.S.C.A. § 137:
'That any alien who is a member of any one of the following classes shall be excluded from admission into the United States:
'(1) Aliens who seek to enter the United States whether solely, principally, or incidentally, to engage in activities which would be prejudicial to the public interest, or would endanger the welfare or safety of the United States;
'(2) Aliens who, at any time, shall be or shall have been members of any of the following classes:
'(A) Aliens who are anarchists;
'(B) Aliens who advocate or teach, or who are members of or affiliated with any organization that advocates or teaches, opposition to all organized government;
'(C) Aliens who are members of or affiliated with (i) the Communist Party of the United States, (ii) any other totalitarian party of the United States, (iii) the Communist Political Association, (iv) the Communist or other totalitarian party of any State of the United States, of any foreign state, or of any political or geographical subdivision of any foreign state; (v) any section, subsidiary, branch, affiliate, or subdivision of any such association or party; or (vi) the direct predecessors or successors of any such association or party, regardless of what name such group or organization may have used, may now bear, or may hereafter adopt;
'(F) Aliens who advocate or teach or who are members of or affiliated with any organization that advocates or teaches (i) the overthrow by force or violence or other unconstitutional means of the Government of the United States or of all forms of law; * * *.
'(3) Aliens with respect to whom there is reason to believe that such aliens would, after entry, be likely to (A) engage in activities which would be prohibited by the laws of the United States relating to espionage, sabotage, public disorder, or in other activity subversive to the national security; (B) engage in any activity a purpose of which is the opposition to, or the control or overthrow of, the Government of the United States by force, violence, or other unconstitutional means; or (C) organize, join, affiliate with, or participate in the activities of any organization which is registered or required to be registered under section 7 of the Subversive Activities Control Act of 1950.'
5
Internal Security Act of 1950, § 23, 8 U.S.C.A. § 156: '* * * Pending final determination of the deportability of any alien taken into custody under warrant of the Attorney General, such alien may, in the discretion of the Attorney General (1) be continued in custody; or (2) be released under bond in the amount of not less than $500, with security approved by the Attorney General; or (3) be released on conditional parole. * * *'
6
See § 22(1), Internal Security Act, note 4, supra.
7
See note 5, supra.
8
Before the passage of the Internal Security Act the four petitioners had been arrested and admitted to bail on warrants charging membership in groups advocating the overthrow of the Government by force and violence. In our view of the issues now here, these former happenings are immaterial to our consideration of this writ of certiorari.
9
'Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.'
10
'That section 20 of the Immigration Act of February 5, 1917, as amended by section 23 of Public Law 831, 81st Congress (8 U.S.C.A. § 156) (commonly known as Subversive Activities Control Act of 1950) and section 1 of the Act of October 16, 1918 (8 U.S.C. 137 (8 U.S.C.A. § 137)), as amended, are, and each of them is, unconstitutional and void in that they deprive persons, including petitioner, of liberty and property without due process of law, in violation of the Fifth Amendment to the Constitution of the United States in that they abridge the freedom of persons, including petitioner, of speech, the press and assembly and the right to petition the government for redress of grievances, in violation of the First Amendment to the Constitution of the United States, and in that they purport to authorize indefinite detention of persons, including petitioner, without bond prior to final determination of deportability.'
11
Carlson v. Landon, 9 Cir., 186 F.2d 183, 186; Stevenson v. Landon, 9 Cir., 186 F.2d 190.
12
Id., 186 F.2d 189.
13
28 U.S.C. § 2248, 28 U.S.C.A. § 2248:
'The allegations of a return to the writ of habeas corpus or of an answer to an order to show cause in a habeas corpus proceeding, if not traversed, shall be accepted as true except to the extent that the judge finds from the evidence that they are not true.'
14
Carlson v. Landon, 9 Cir., 187 F.2d 991.
15
Quite properly, we think, no question is raised as to the applicability of the Internal Security Act amendments relating to membership in the Communist Party and allowance of bail, notes 4 and 5, supra, to detention under a warrant based on 8 U.S.C., 1946 ed., § 137(c), 8 U.S.C.A. § 137(c), note 3, supra. Cf. Internal Security Act, 64 Stat. 987, Title I, § 2, 50 U.S.C.A. § 781.
16
'That the petitioner, while under cross-examination by the Chief Assistant United States Attorney, was a consistently evasive witness and his evasive demeanor in testifying in relation to his communistic activities convinces this Court that he is knowingly and wilfully participating in the Communist movement.'
17
187 F.2d at page 803:
'Appellant was seventeen years of age when he arrived in this country from Poland in 1913. Since then he has lived continuously in the State of Michigan. He has been a waiter in an English speaking restaurant in Hamtramck, Mich., for seventeen years and for a great part of that time he was head waiter. He owns his own home in Detroit and has a family consisting of his wife, two sons, a daughter, and five grandchildren. Both sons served in the armed services of the United States in World War II. His children and grandchildren were born in this country and his daughter married here. During World War II while appellant was head waiter in the restaurant he sold about $50,000.00 worth of U.S. War Bonds and during that period he donated blood on seven occasions to the Red Cross for the United States Army.
'Before his second arrest and while he was at large on bail he reported regularly to the Department of Immigration and Naturalization Service. The record fails to disclose that he has violated any law or that he is engaged or is likely to engage in, any subversive activities.'
18
Nishimura Ekiu v. United States, 142 U.S. 651, 659, 12 S.Ct. 336, 338, 35 L.Ed. 1146; Fong Yue Ting v. United States, 149 U.S. 698, 707, 13 S.Ct. 1016, 1019, 37 L.Ed. 905; Bugajewitz v. Adams, 228 U.S. 585, 33 S.Ct. 607, 57 L.Ed. 978; Ng Fung Ho v. White, 259 U.S. 276, 280, 42 S.Ct. 492, 493, 66 L.Ed. 938; United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318, 57 S.Ct. 216, 220, 81 L.Ed. 255; Eichenlaub v. Shaughnessy, 338 U.S. 521, 528, 70 S.Ct. 329, 332, 94 L.Ed. 307; III Hackworth's Digest of International Law 725 (1942).
19
For example compare Act of December 17, 1943, 57 Stat. 600, with Act of May 6, 1882, 22 Stat. 58.
20
See note 4, supra. The extension of the proscription of residence to aliens believing in the overthrow of Government by force or violence has been progressive, as can be readily observed by following the successive enactments of laws to regulate the residence of aliens since the Act of February 5, 1917, 39 Stat. 874. See 8 U.S.C. §§ 137 and 155, 8 U.S.C.A. §§ 137, 155.
21
'(15) The Communist movement in the United States is an organization numbering thousands of adherents, rigidly and ruthlessly disciplined. Awaiting and seeking to advance a moment when the United States may be so far extended by foreign engagements, so far divided in counsel, or so far in industrial or financial straits, that overthrow of the Government of the United States by force and violence may seem possible of achievement, it seeks converts far and wide by an extensive system of schooling and indoctrination. Such preparations by Communist organizations in other countries have aided in supplanting existing governments. The Communist organization in the United States, pursuing its stated objectives, the recent successes of Communist methods in other countries, and the nature and control of the world Communist movement itself, present a clear and present danger to the security of the United States and to the existence of free American institutions, and make it necessary that Congress, in order to provide for the common defense, to preserve the sovereignty of the United States as an independent nation, and to guarantee to each State a republican form of government, enact appropriate legislation recognizing the existence of such world-wide conspiracy and designed to prevent it from accomplishing its purpose in the United States.'
22
I Trotsky, History of the Russian Revolution, 106, 120, 141, 144, 151; Lenin, Collected Works (1930), Vol. XVIII, pp. 279 280; Lenin, The State and Revolution, August, 1917, Foreign Languages Publishing House, Moscow (1949), 28, 30, 33. Translations furnished indicate the same attitude on the part of Stalin. Collected Works, Vol. I, pp. 131—137, 185—205, 241—246; Vol. III, pp. 367—370. And see Leites, The Operational Code of the Politburo (1950), c. xiii, 'Violence.' See also Immigration and Naturalization Systems of the United States, S.Rep.No.1515, 81st Cong., 2d Sess., Senate Committee on the Judiciary, Part 3, Subversives, c. I, B, Alien Control; c. II, C, Deportation of Subversive Aliens.
23
Turner v. Williams, 194 U.S. 279, 24 S.Ct. 719, 48 L.Ed. 979; Schneiderman v. United States, 320 U.S. 118, Mr. Justice Douglas concurring at page 165, 63 S.Ct. 1333, 1355, 87 L.Ed. 1796.
24
Bugajewitz v. Adams, 228 U.S. 585, 591, 33 S.Ct. 607, 608, 57 L.Ed. 978; Ng Fung Ho v. White, 259 U.S. 276, 280, 42 S.Ct. 492, 493, 66 L.Ed. 938.
25
Mahler v. Eby, 264 U.S. 32, 39, 44 S.Ct. 283, 286, 68 L.Ed. 549: '(Congress) was, in the exercise of its unquestioned right, only seeking to rid the country of persons who had shown by their career that their continued presence here would not make for the safety or welfare of society.' See also Eichenlaub v. Shaughnessy, 338 U.S. 521, 530, 70 S.Ct. 329, 333, 94 L.Ed. 307. Compare Harisiades v. Shaughnessy, 342 U.S. 580, 72 S.Ct. 512.
26
United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318, 57 S.Ct. 216, 220, 81 L.Ed. 255.
27
Fong Yue Ting v. United States, 149 U.S. 698, 713—715, 728, 13 S.Ct. 1016, 1022, 1027, 37 L.Ed. 905; Nishimura Ekiu v. United States, 142 U.S. 651, 659, 12 S.Ct. 336, 338, 35 L.Ed. 1146; The Japanese Immigrant Case, 189 U.S. 86, 97, 23 S.Ct. 611, 613, 47 L.Ed. 721; Zakonaite v. Wolf, 226 U.S. 272, 33 S.Ct. 31, 57 L.Ed. 218; Wong Wing v. United States, 163 U.S. 228, 231, 16 S.Ct. 977, 978, 41 L.Ed. 140.
A claim of citizenship has protection. Ng Fung Ho v. White, 259 U.S. 276, 42 S.Ct. 492, 66 L.Ed. 938.
28
Turner v. Williams, 194 U.S. 279, 290—291, 24 S.Ct. 719, 722, 48 L.Ed. 979; Zakonaite v. Wolf, 226 U.S. 272, 275, 33 S.Ct. 31, 32, 57 L.Ed. 218; Bugajewitz v. Adams, 228 U.S. 585, 591, 33 S.Ct. 607, 608, 57 L.Ed. 978; Mahler v. Eby, 264 U.S. 32, 44 S.Ct. 283, 68 L.Ed. 549.
29
Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 376, 92 L.Ed. 433; Jordan v. De George, 341 U.S. 223, 231, 71 S.Ct. 703, 707, 95 L.Ed. 886.
30
The Japanese Immigrant Case, 189 U.S. 86, 23 S.Ct. 611, 47 L.Ed. 721; Vajtauer v. Commissioner, 273 U.S. 103, 47 S.Ct. 302, 71 L.Ed. 560.
31
The former provision read as follows: '* * * Pending the final disposal of the case of any alien so taken into custody, he may be released under a bond in the penalty of not less than $500 with security approved by the Attorney General, conditioned that such alien shall be produced when required for a hearing or hearings in regard to the charge upon which he has been taken into custody, and for deportation if he shall be found to be unlawfully within the United States.' 8 U.S.C., 1946 ed., § 156, 8 U.S.C.A. § 156.
On December 7, 1951, at the request of this Court, the Government furnished us a list of the Bail or Detention Status, as of the period just prior to December 7, of deportation cases, involving subversive charges, pending on the date of the enactment of the Internal Security Act, September 23, 1950. The list indicates that the modest bonds or personal recognizances of the far larger part of the aliens remained unchanged after the bond amendment to the Immigration Act. Of those detained without bond on order of the Service, the courts have released all but a few. It is quite clear from the list that detention without bond has been the exception.
32
H.R.Rep.No.1192, 81st Cong., 1st Sess., p. 6; S.Rep.No.2239, 81st Cong., 2d Sess., p. 5.
33
169 F.2d at page 751: 'The discretion of the Attorney General which we held to exist in the Zapp case is interpreted as one which is to be reasonably exercised upon a consideration of such factors, among others, as the probability of the alien being found deportable, the seriousness of the charge against him, if proved, the danger to the public safety of his presence within the community, and the alien's availability for subsequent proceedings if enlarged on bail. However, in any consideration of his denial of bail it should always be borne in mind that the court's opinion as to whether the alien should be admitted to bail can only override that of the Attorney General where the alien makes a clear and convincing showing that the decision against him was without a reasonable foundation.' See U.S. ex rel. Doyle v. District Director, 2 Cir., 169 F.2d 753; U.S. ex rel. Pirinsky v. Shaughnessy, 2 Cir., 177 F.2d 708; U.S. ex rel. De Geronimi v. Shaughnessy, 2 Cir., 187 F.2d 896. (This is the only case from the Second Circuit Court of Appeals since the Internal Security Act. It leaves open the question of the reviewability of the Attorney General's action under that Act.)
34
The proposed bills at one time contained a provision: '(f) No alien detained under any provision of law relating to the exclusion or expulsion of aliens shall, prior to an unreviewable order discharging him from custody, be released by any court, on bond or otherwise, except pursuant to the order of a Federal court composed of three judges.' S.Rep.No.2239, 81st Cong., 2d Sess., p. 3. This was introduced to allow for possible release from custody pending deportation hearings. Id., at p. 9. The clause did not survive.
35
Even though we also take into consideration the factor of probable avalability for trial, which we do not think is of great significance in cases involving security from communist activities of alien communists, the past record of these aliens is far from decisive against the Attorney General's action. The Internal Security Act made membership sufficient for deportation and set up a procedure that could be carried out. § 22(2)(C), note 4, supra, and § 23. Deportation became more likely for alien communists by these amendments.
36
Buttfield v. Stranahan, 192 U.S. 470, 24 S.Ct. 349, 48 L.Ed. 525; Union Bridge Co. v. United States, 204 U.S. 364, 386, 27 S.Ct. 367, 374, 51 L.Ed. 523; United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 55 L.Ed. 563; Panama Refining Co. v. Ryan, 293 U.S. 388, 421, 55 S.Ct. 241, 248, 79 L.Ed. 446: 'The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality, which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the Legislature is to apply.'
37
Wayman v. Southard, 10 Wheat. 1, 43—48, 6 L.Ed. 253; St. Louis, I.M. & S.R. Co. v. Taylor, 210 U.S. 281, 286, 28 S.Ct. 616, 617, 52 L.Ed. 1061; Intermountain Rate Cases, 234 U.S. 476, 486 489, 34 S.Ct. 986, 991—992, 58 L.Ed. 408; Fahey v. Mallonee, 332 U.S. 245, 249, 67 S.Ct. 1552, 1553, 91 L.Ed. 2030. See Yakus v. United States, 321 U.S. 414, 424—425, 64 S.Ct. 660, 667, 88 L.Ed. 834: 'The essentials of the legislative function are the determination of the legislative policy and its formulation and promulgation as a defined and binding rule of conduct * * *. These essentials are preserved when Congress has specified the basic conditions of fact upon whose existence or occurrence, ascertained from relevant data by a designated administrative agency, it directs that its statutory command shall be effective. It is not objection that the determination of facts and the inferences to be drawn from them in the light of the statutory standards and declaration of policy call for the exercise of judgment, and for the formulation of subsidiary administrative policy within the prescribed statutory framework.'
38
Any alien becoming a public charge within five years of entry may be subject to deportation. Likewise any alien sentenced more than once for any crime involving moral turpitude, and certain illegal entrants. See 8 U.S.C. § 155, 8 U.S.C.A. § 155.
39
Approximately 85,000,000 people citizens and aliens, are said to have crossed our borders in the 1949 fiscal year. Some many times. , five million aliens are reported to have registered under the Alien Registration Act of 1940, 54 Stat. 670. S.Rep.No.1515, pp. 630—631, supra, n. 22.
40
See for example § 2(15), quoted above at note 21.
41
Attention is called to United States ex rel. Potash v. District Director, 2 Cir., 169 F.2d 747, 752: 'If the Eighth Amendment to the Constitution is considered to have any bearing upon the right to bail in deportation proceedings, and this has been denied, it is our opinion that the provisions of that Amendment and any requirement of the due process provisions of the Fifth Amendment will be fully satisfied if the standards of fairness and reasonableness we have set forth regarding the exercise of discretion by the Attorney General are observed.'
United States ex rel. Klig v. Shaughnessy, D.C., 94 F.Supp. 157, 160: 'It is not unappropriate to refer here to the Eighth Amendment to the Constitution of the United States, one of that series of amendments collectively known as the Bill of Rights, which prohibits the imposition of excessive bail. Certainly, the principle inherent in that amendment applies to deportation proceedings, whether or not such proceedings technically fall within its scope. That principle cannot be reconciled with the government's denial of bail to these relators under the circumstances here set forth.'
42
1 Wm. & Mary Sess. 2, c. II, § I(10).
43
Petersdorff, on Bail, 483 et seq.
44
I Annals of Congress 753.
45
,1 Stat. 91, § 33; Federal Rules of Criminal Procedure, 46(a), 18 U.S.C.A.
Similarly, on appeal from a conviction by the trial court, a defendant is not entitled to bail if he does not present a substantial question. Fed.Rules Crim.Proc., 46(a)(2), 18 U.S.C.A.; Bridges v. United States, 9 Cir., 184 F.2d 881, 884; Williamson v. United States, 2 Cir., 184 F.2d 280, 281; Baker v. United States, 8 Cir., 139 F.2d 721.
In England, there was a series of crimes and situations where the arrested person could 'have no other sureties but the four walls of the prison.' Blackstone's Commentaries, Book IV, 298.
46
See United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 158, 44 S.Ct. 54, 57, 68 L.Ed. 221, and cases there cited; Mahler v. Eby, 264 U.S. 32, 45, 44 S.Ct. 283, 288, 68 L.Ed. 549. These cases had valid orders entered subsequent to an invalid arrent.
47
See United States ex rel. Hikkinen v. Gordon, 8 Cir., 190 F.2d 168 19; Doyle v. Russell, 30 Barb., N.Y., 300.
48
People ex rel. Wolfe v. Johnson, 230 N.Y. 256, 130 N.E. 286.
49
Voll v. Steele, 141 Ohio St. 293, 47 N.E.2d 991. Cf. Porter v. Garmony, 148 Ga. 261, 96 S.E. 426. Bail once allowed by a magistrate, pending trial, may not in some instances be refused by a higher court. In re Marshall, 38 Ariz. 424, 300 P. 1011.
50
Anderson v. Corall, 263 U.S. 193, 196, 44 S.Ct. 43, 44, 68 L.Ed. 247.
51
Taylor v. Taintor, 16 Wall. 366, 371, 21 L.Ed. 287.
52
See Dowd v. Cook, 340 U.S. 206, 71 S.Ct. 262, 95 L.Ed. 215; Mahler v. Eby, 264 U.S. 32, 45, 44 S.C. 283, 288, 68 L.Ed. 549.
1
'Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.' U.S.Const., Amend. VIII.
2
'Congress shall make no law * * * abridging the freedom of speech, or of the press; * * *.' U.S.Const., Amend. I.
3
'No person * * * shall be * * * deprived of life, liberty, or property, without due process of law; * * *.' U.S.Const., Amend. V.
4
96 Cong.Rec.10449; H.R.Rep.No.1192, 81st Cong., 1st Sess., pp. 7, 9, 10.
5
And the District Judge in No. 35 said 'When there is a claim, and I don't know whether it is true or not * * * that these people are security risks and that their release is dangerous to the security of the United States, until that is either disproved or proved I am not going to release them. My first vote in that respect is for the security of the country. We have had 42,000 casualties already.'
6
In this state of the record and particularly in view of the Solicitor General's contrary admission, I am at a loss to understand note 35 in the Court's opinion. It is there intimated that these aliens might flee and be unavailable for deportation. I cannot believe that the Court is resting, or would rest, its approval of denial of bail on a ground which even the Solicitor General had not deemed supportable by the record.
7
'Anonymous informations ought not to be received in any sort of prosecution. It is introducing a very dangerous precedent, and is quite foreign to the spirit of our age.' Written near 100 A.D. by Emperor Trajan to Pliny the Younger in response to Pliny's interesting report of his prosecution of Christians. 9 Harvard Classics, 428. Pliny was 'in great doubt' even then as to 'whether the very profession of Christianity, unattended with any criminal act, or only the crimes themselves inherent in the profession are punishable * * *.' Supra, 426. 'If they (informers against Christians) succeeded in their prosecution, they were exposed to the resentment of a considerable and active party, to the censure of the more liberal portion of mankind, and to the ignominy which in every age and country, has attended the character of an informer. If, on the contrary, they failed in their proofs, they incurred the severe, and perhaps capital, penalty which, according to a law published by the emperor Hadrian, was inflicted on those who falsely attributed to their fellow-citizens the crime of Christianity.' 2 Gibbon, The History of the Decline and Fall of the Roman Empire (Oxford Univ.Press), 107, 108.
8
See Mozorosky v. Hurlburt, 106 Or. 274, 198 P. 556, 211 P. 893, 15 A.L.R. 1076 and note pages 1079—1083.
9
See, e.g., American Communications Assn. v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925; Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137; Feiner v. New York, 340 U.S. 315, 71 S.Ct. 303, 328, 95 L.Ed. 267, 295.
1
Pub.L.No.831, 81st Cong., 2d Sess., 64 Stat. 987.
2
H.R. 10, 81st Cong., 1st Sess. read in relevant part thus: '(g) No court shall have jurisdiction to release on bond or otherwise any alien detained under any provision of law relating to the exclusion or expulsion of aliens at any time prior to a decision of court in his favor which is not subject to further judicial reviews.' See 96 Cong.Rec. 10448—10460. H.R.Rep. No. 1192, 81st Cong., 1st Sess. 10—11 had this comment: 'The provision is designed to leave the question of releasing an alien from custody in an immigration case entirely in the hands of the Attorney General * * *. It is no way denies the right of any alien to test the legality of his detention through the courts; it merely states that the alien cannot be released by the court until judicial proceedings have been finally terminated in the alien's favor.'
3
Internal Security Act of 1950, § 23, 64 Stat. 987, 1010, 8 U.S.C. (Supp. IV) § 156(a), 8 U.S.C.A. § 156(a) (emphasis added).
4
H.R.Rep.No.1192, 81st Cong., 1st Sess. 5—6, commenting on H.R. 10, which made the Attorney General's discretion unreviewable, yet gave 'discretion' to the Attorney General, said: 'This (existing law) has often been found to be lacking in clarity and doubtful in purpose when questions have arisen concerning procedure following arrest of an alien, or during the interim between his arrest and his hearing and decision on his case * * *. The committee believes that this bill will greatly simplify such details.'
A memorandum from a lawyers' group which was read into the record urged that to make the decision of the Attorney General unreviewable 'flouts the recent decision of the circuit court of appeals of the second circuit,' citing United States ex rel. Potash v. District Director, 2 Cir., 169 F.2d 747. 96 Cong.Rec. 10454.
5
Compare the language 'in the discretion of the Attorney General' with the clause 'Where the Controller has reasonable grounds to believe,' which the Privy Council had before it in Nakkuda Ali v. Jayaratne, (1951) A.C. 66. It was held, in the judgment of Lord Radcliffe, 'that there must in fact exist such reasonable grounds, known to the Controller, before he can validly exercise the power' conferred. And for this reason: 'After all, words such as these are commonly found when a legislature or law-making authority confers powers on a minister or official. However read, they must be intended to serve in some sense as a condition limiting the exercise of an otherwise arbitrary power. But if the question whether the condition has been satisfied is to be conclusively decided by the man who wields the power the value of the intended restraint is in effect nothing. No doubt he must not exercise the power in bad faith: but the field in which this kind of question arises is such that the reservation for the case of bad faith is hardly more than a formality.' Id., at 77.
6
Professor Mark De Wolfe Howe in The Nation, Jan. 12, 1952, p. 30.
7
Internal Security Act of 1950, § 2, 64 Stat. 987, 50 U.S.C.A. § 781.
8
Internal Security Act of 1950, § 22, 64 Stat. 987, 1006, 8 U.S.C. (Supp. IV) §§ 137, 137—3, 8 U.S.C.A. §§ 137, 137—3.
9
Ibid.
10
40 Stat. 1012, 8 U.S.C. § 137(c), 8 U.S.C.A. § 137(c).
11
See Dennis v. United States, 341 U.S. 494, 510—511, 71 S.Ct. 857, 867—868, 95 L.Ed. 1137, and the concurring opinion of Mr. Justice Jackson in American Communications Assn. v. Douds, 339 U.S. 382, 422, 70 S.Ct. 674, 695, 94 L.Ed. 925.
12
A radiogram to the District Director of Immigration and Naturalization in Los Angeles from the Acting Commissioner in Washington compendiously justified holding the four Los Angeles aliens without bail thus: '* * * the instruction * * * was issued only after the cases had been examined in the light of the Internal Security Act * * * and the spirit and intention thereof and all of the factors concerning the likelihood of the deportability and the activities of said alien had been given careful consideration as well as the factors of undue hardship which continued detention might impose.'
The radiograms, in October, 1950, to the District Director in Detroit ordering Zydok's rearrest and detention without bail gave no reasons for the action.
13
See 20 Stat. 30, 18 U.S.C. § 3481, 18 U.S.C.A. § 3481; Wilson v. United States, 149 U.S. 60, 66, 13 S.Ct. 765, 766, 37 L.Ed. 650. See also Blau v. United States, 340 U.S. 159, 71 S.Ct. 223, 95 L.Ed. 170.
14
In a case just decided, the Court of Appeals for the Second Circuit found a not unreasonable exercise of discretion by the Attorney General in circumstances that are here wanting. An extract from the opinion of Judge A. N. Hand illumines the differences: 'In his petition for the writ, Young alleged facts indicating that if released he would be available for any further proceedings at which his presence would be required. The return to the writ, however, contained allegations which, if accepted, established a reasonable foundation for the denial of bail by the Attorney General. Thus the return, in addition to containing allegations of membership in the Communist party, alleged that Young had once before escaped from custody during earlier proceedings; that he had previously attempted to enter the United States by furnishing a false identity and with a fraudulent passport; and that during his present detention he refused to answer questions relating to prior identification, places of residence, employment and home life. Section 2248 of the Judicial Code, 28 U.S.C. § 2248 (28 U.S.C.A. § 2248), requires that the facts alleged in the return be taken as true unless impeached, and Young in his traverse to the return did not refute those statements, nor did he in his motion for reargument, make any offer to prove the contrary, nor did he assert new facts, which under 28 U.S.C. § 2246 (28 U.S.C.A. § 2246) could have been accomplished by affidavit. As the Supreme Court has recently said in Stack v. Boyle, 342 U.S. 1, 4, 72 S.Ct. 1, 3: 'The right to release before trial is conditioned upon the accused's giving adequate assurance that he will stand trial and submit to sentence if found guilty." United States ex rel. Young v. Shaughnessy, 2 Cir., 194 F.2d 474.
1
See my dissents in Dennis v. United States, 341 U.S. 494, 584—589, 71 S.Ct. 857, 904—907, 95 L.Ed. 1137; Harisiades v. Shaughnessy, 342 U.S. 580, 598, 72 S.Ct. 512, 523.
| 23
|
343 U.S. 99
72 S.Ct. 502
96 L.Ed. 775
BUCK et al.v.PEOPLE OF STATE OF CALIFORNIA.
No. 165.
Argued Nov. 28, 29, 1951.
Decided March 10, 1952.
Rehearing Denied April 21, 1952.
See 343 U.S. 932, 72 S.Ct. 756.
Mr. Manuel Ruiz, Jr., Los Angeles, Cal., for appellants.
Mr. Duane J. Carnes, San Diego, Cal., for appellee.
Mr. Justice MINTON delivered the opinion of the Court.
1
Appellants, American citizens, are taxicab drivers. They were arrested by the Sheriff of San Diego County, California, and charged with driving taxicabs in the unincorporated area of San Diego County without a permit from the Sheriff as required by § 9 of Ordinance 464, the pertinent provisions of which are set forth in the margin.* The facts were stipulated without the taking of any evidence. From the stipulation we learn that appellants had picked up passengers across the line in Mexico and were transporting them across the unincorporated area of San Diego County to points not in the unincorporated area when they were arrested. They had made oral requests for permits from the Sheriff, rather than appication in writing on the forms provided therefor, as required by § 9 of the ordinance. When these requests were denied, they continued to transport passengers, although upon advice of counsel they did not pick up or discharge any passengers in the unincorporated area. We take their action to mean that they claimed that because they were engaged in foreign commerce, they had either the right to a permit without complying with the other provisions of the ordinance or the right to operate withot a permit. Appellants contend that the County had no right to burden that foreign commerce by regulation.
2
They were found guilty of violating § 9 of the ordinance by the Justice's Court of National Township, San Diego County. The Superior Court of California, in and for the County of San Diego, Appellate Department, affirmed the conviction and allowed an appeal to this Court. 101 Cal.App.2d Supp. 912, 226 P.2d 87. We noted probable jurisdiction under 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2).
3
The Motor Carrier Act of 1935 gave broad power of regulation over motor vehicles to the Interstate Commerce Commission; but Congress partially excluded taxicabs from such regulation in the following words: 'Nothing in this part, except the provisions of section 304 relative to qualifications and maximum hours of service of employees and safety of operation or standards of equipment shall be construed to include * * * (2) taxicabs, or other motor vehicles performing a bona fide taxicab service, having a capacity of not more than six passengers and not operated on a regular route or between fixed termini * * *.' 49 Stat. 545, 49 U.S.C. § 303(b), 49 U.S.C.A. § 303(b).
4
The Interstate Commerce Commission, acting under authorization of Congress, has promulgated regulations establishing minimum qualifications for drivers of motor vehicles for carriers, including taxicabs, engaged in interstate and foreign commerce, 49 CFR § 192.2. This does not prevent the state or a subdivision thereof, in the exercise of its police power, from providing additional specifications as to qualifications, not inconsistent or in conflict with the regulations of the Interstate Commerce Commission. Especially is this true since the regulations of the Commission are only minimum.
5
As the ordinance is not in conflict with and may be construed consistently with the federal regulations and in keeping with the latter's purpose, they may stand together. Kelly v. State of Washington, 302 U.S. 1, 10, 58 S.Ct. 87, 92, 82 L.Ed. 3; Missouri, K. & T.R. Co. v. Harris, 234 U.S. 412, 419, 34 S.Ct. 790, 793, 58 L.Ed. 1377; Savage v. Jones, 225 U.S. 501, 539, 32 S.Ct. 715, 728, 56 L.Ed. 1182; Reid v. People of the State of Colorado, 187 U.S. 137, 148, 23 S.Ct. 92, 96, 47 L.Ed. 108.
6
California has a legitimate interest in the kind and character of persons who engage in the taxicab business in the State. The authority to issue permits has been granted by the State to the Board of Supervisors of each county. In re Martinez, 22 Cal.2d 259, 262, 138 P.2d 10. Such delegation by the State to the county has been approved by this Court. Sprout v. City of South Bend, 277 U.S. 163, 171, 172, 48 S.Ct. 502, 504, 505, 72 L.Ed. 833.
7
The operation of taxicabs is a local business. For that reason, Congress has left the field largely to the states. Operation of taxicabs across state lines or international bounaries is so closely related to the local situation that the regulation of all taxicabs operating in the community only indirectly affects those in commerce, and so long as there is no attempt to discriminatorily regulate or directly burden or charge for the privilege of doing business in interstate or foreign commerce, the regulation is valid. The operation is 'essentially local,' and in the absence of federal regulation, state regulation is required in the the public interest. Panhandle Pipe Line Co. v. Michigan Pub. Serv. Comm., 341 U.S. 329, 333, 71 S.Ct. 777, 779, 95 L.Ed. 993. Even if appellants were engaged in foreign commerce at the time of their arrest and did not intend to engage in intrastate commerce, the permit was not required because they were engaged in foreign commerce. Under the permit they were free to engage in both intrastate and foreign commerce. The ordinance requires a written application for a permit, a small fee, and compliance with certain standards relating to the service and to the public safety. Our prior cases would not justify us in holding that the ordinance is an unreasonable burden on foreign commerce in its application to the stipulated facts here. Aero Transit Co. v. Georgia Comm., 295 U.S. 285, 55 S.Ct. 709, 79 L.Ed. 1439; Hicklin v. Coney, 290 U.S. 169, 54 S.Ct. 142, 78 L.Ed. 247; cf. Railway Express Agency v. People of State of New York, 336 U.S. 106, 111, 69 S.Ct. 463, 466, 93 L.Ed. 533.
8
Thus far we have dealt only with § 9 of the ordinance, which exacts the $1 fee for a driver's permit. That is all the court we are reviewing passed upon. That is all appellants were tried and convicted for. But it is suggested that the permit may have been denied them because they had violated § 4 of the ordinance by not getting a taxicab operator's license and paying the $50 fee therefor. But appellants may also have been denied permits under § 9 for the reason that oral requests only were made and not written applications to the Sheriff, as required by the ordinance, or the Sheriff may have found them without knowledge as to the geography of the county and traffic regulations, or that they were persons of bad moral character or had been convicted of a crime involving moral turpitude, all adequate state grounds. In that event, this Court would not take jurisdiction to pass upon the question. Chief Justice Hughes, speaking for the Court in Lynch v. People of New York ex rel. Pierson, 293 U.S. 52, 54—55, 55 S.Ct. 16, 17, 79 L.Ed. 191, said: '(I)f it does not appear upon which of two grounds the judgment was based, and the ground independent of a federal question is sufficient in itself to sustain it, this Court will not take jurisdiction.' (Citing numerous cases.) This Court should not be reaching for constitutional questions to cast doubt upon state legislation not before the Court. The constitutional validity of the $50 requirement is not now before the Court and was not before the lower court.
9
The judgment of the Superior Court of California is affirmed.
10
Affirmed.
11
Mr. Justice REED with whom Mr. Justice DOUGLAS, Mr. Justice JACKSON and Mr. Justice BURTON join, dissenting.
12
The appellants are American citizens who were prosecuted in the Justice's Court of National Township, County of San Diego, California, for violating San Diego County Ordinance No. 958 (New Series), amending § 9 of Ordinance 464 (New Series), as amended by Ordinance 609 (New Series). The complaint specified that appellants violated § 9 of the ordinance by wilfully driving their taxicabs in the unincorporated area of the County of San Diego without first having obtained a written permit from the Sheriff authorizing them to do so.
13
Under the terms of § 9, every driver of a taxicab in the unincorporated area of the County, hereinafter called simply the County, is required to obtain a written permit from the Sheriff.1 After the permit is issued, the County exacts a $1 fee for an identification card. The Sheriff has authority to deny an application for the permit if he determines that the applicant (1) is of bad moral character; or (2) has failed to comply with any of the other provisions of the ordinance; or (3) has been convicted of an offense involving moral turpitude. Section 13 provides that a violation of § 9 is a misdemeanor, punishable by a fine of not more than $500, or imprisonment for not more than six months, or both.
14
Appellants were convicted of violating § 9, and each was fined $250. They appealed to the Superior Court of California, in and for the County of San Diego, Appellate Department, where the judgments were affirmed. 101 Cal.App.2d Supp. 912, 226 P.2d 87. That court, by allowing an appeal to this Court, confirms our understanding that no further review was available in the California courts.2 Accordingly, we noted probable jurisdiction. 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2).
15
Of the multiple errors assigned, only one need be considered, for it disposes of the case: That the California courts erred in holding that § 9 of Ordinance No. 464, as construed and applied to this complaint, does not exceed the constitutional limits of the power of San Diego County to regulate foreign commerce. This question was raised in the trial court by motion for arrest of judgment, and was treated as properly in issue by both California courts. Clearly they rejected, as a matter of California law, appellee's contention that the constitutional questions were not properly presented because appellants had failed to exhaust the administrative or other judicial remedies allegedly available for review of the denial of the driver's permits, the Superior Court saying: '* * * we will have to decide whether the ordinance is valid as tested by the commerce clause * * *.'3 We are, of course, bound by this determination of California law. It is therefore unnecessary to consider whether there was available to appellants any effective method to test in the California courts the constitutionality of the denial of their permits, or whether—if such remedies were available—the failure to exercise them would preclude the defense of unconstitutionality in this criminal prosecution.
16
The case was tried on a stipulation of facts. It is not disputed, therefore, that appellants applied for the driver's permits required by § 9 of the ordinance.4 These applications were denied, although the record does not show the reasons for the denials. The Superior Court stated: 'Each of the defendants had applied for and been denied the license (permit) required by the ordinance in question.' No issue was made as to the sufficiency of the application, and the opinion makes no point of any irregularity in applying. Thereafter, appellants, on the advice of counsel, continued nonetheless to transport persons by taxicab to and from Mexico across the unincorporated territory of the County. It is this transportation, after denial of the driver's permits, for which appellants are being prosecuted in this case.
17
The stipulation further discloses that appellants neither picked up nor discharged passengers in San Diego County. Their only operations in the County consisted of driving passengers through the County, to and from Mexico. So far as the record shows, appellants are engaged solely in foreign commerce. Thus it is clear that San Diego County, by refusing to issue the driver's permits, is attempting by regulation to exclude appellants from transporting persons in foreign commerce across San Diego County unless they meet the qualifications for drivers established by the ordinance. The issue is whether this exclusion can be reconciled iwith the constitutional delegation to Congress of the power to regulate foreign commerce.
18
Generally, it is well settled that the power to regulate foreign commerce is lodged in the Federal Government. U.S.Const., Art. I, § 8. Of course, this does not mean that the states are powerless in all cases to take reasonable measures to protect their legitimate interests.5 For example, in the absence of conflicting congressional legislation,6 we assume that San Diego County might require that loads should not exceed a reasonable minimum weight and that, if appellants violated such regulation, the County could properly prohibit them from driving their taxicabs across the County.7
19
The burden, of course, is upon appellants as challengers of the validity of the ordinance to establish its unconstitutionality. That burden is met prima facie when they show that the ordinance exacts payment from foreign commerce of fifty dollars ($50) for an operator's license, note 10, infra, plus the driver's permit. The stipulated facts show the foreign commerce; the opinion of the trial court shows that appellants relied upon the $50 license fee as an unconstitutional burden.8 Thereupon the government body, seeking to regulate, must make it affirmatively appear in some way that the regulation is directed toward an incident subject to state control. Cf. Interstate Transit, Inc. v. Lindsey, 283 U.S. 183, 186, 51 S.Ct. 380, 381, 75 L.Ed. 953; Ingels v. Morf, 300 U.S. 290, 294, 57 S.Ct. 439, 441, 81 L.Ed. 653; Clark v. Paul Gray, Inc., 306 U.S. 583, 599, 59 S.Ct. 744, 753, 83 L.Ed. 1001. A taxing municipality must show, for example, that the tax on interstate commerce is intended to compensate for facilities provided by the state. Aero Mayflower Transit Co. v. Commissioners, 332 U.S. 495, 505, 68 S.Ct. 167, 172, 92 L.Ed. 99; Capitol Greyhound Lines v. Brice, 339 U.S. 542, 70 S.Ct. 806, 94 L.Ed. 1053; see Elgin v. Capitol Greyhound Lines, 192 Md. 303, 310, 318, 64 A.2d 284, 288, 291—292. This does 'not remotely imply that the burden is on the taxing authorities to sustain the constitutionality of a tax. But where the power to tax is not unlimited, validity is not established by the mere imposition of a tax.' Mullaney v. Anderson, 342 U.S. 415, 418, 72 S.Ct. 428.
20
While this permit might have been properly denied for an adequate state reason and not for lack of the $50 operator's license, it is incumbent on the state (or, in this case, the County) to state that reason at the trial. Appellants need not, and as a practical matter could not, explain why the Sheriff of San Diego County denied their permits. The alternative to requiring explanation by the County of the reason for refusing a license would be to compel the applicants to prove their compliance with all valid requirements. Thus, assuming that the remainder of the ordinance is valid, they would be compelled under the terms of the ordinance to show, for example, that the Sheriff believes that they are of good moral character, and that they have never been convicted of an offense involving moral turpitude. In view of the fact that only the County through its officers can know the reasons for denial of the permits, and can, by placing these reasons on the record, narrow the issues to manageable proportions and give appellants a fair opportunity to present their objections, the burden of going forward with this evidence must rest on the County.
21
In this case, San Diego County has offered no explanation for its action. The record shows no basis for any conclusion by us. Cf. Hooven & Allison Co. v. Evatt, 324 U.S. 652, 658, 65 S.Ct. 870, 873, 89 L.Ed. 1252. We cannot determine, on this record, whether the Sheriff denied the permits because he had formed a low opinion of appellants' moral character,9 or because the Sheriff was dissatisfied with their knowledge of the geography of the County, or for lack of the $50 operator's license. Without some explanation, it is impossible for this Court to decide that the County is justified in excluding appellants from engaging in foreign commerce in the County. Cf. Smith v. Cahoon, 283 U.S. 553, 565, 51 S.Ct. 582, 75 L.Ed. 1264. In comparable situations this Court has felt the need of greater particularity for adjudication. Rescue Army v. Municipal Court, 331 U.S. 549, 575, 67 S.Ct. 1409, 1423, 91 L.Ed. 1666.
22
Of course, it might be unnecessary for the County to explain the precise reason why the permits were denied, if the ordinance itself limited the Sheriff to constitutionally valid reasons. But this ordinance does not so limit the Sheriff's decisions. For example, § 9 of the ordinance in question here contemplates that the Sheriff will deny a driver's permit to any person who has failed to comply with the other provisions of the ordinance. While we cannot be sure, on this record, why the Sheriff refused to issue the permits to appellants, it is likely that his refusal was based on the fact that appellants had not previously acquired a license to operate their taxicabs in San Diego County, as required by § 4 of the ordinance.10 That section imposes an annual flat fee of $50 (plus $1 for each taxicab) on the privilege of operating taxicabs in San Diego County. There is no suggestion that the $50 fee is levied only as compensation for the use of the roads of the County, or to defray the expense of regulating motor traffic. Clearly such a tax for the privilege of engaging in foreign commerce could not constitutionally be imposed by San Diego County. Cf. Sprout v. City of South Bend, 277 U.S. 163, 48 S.Ct. 502, 72 L.Ed. 833; Interstate Transit, Inc. v. Lindsey, 283 U.S. 183, 51 S.Ct. 380, 75 L.Ed. 953; Ingels v. Morf, 300 U.S. 290, 57 S.Ct. 439, 81 L.Ed. 653; Spector Motor Service, Inc. v. O'Connor, 340 U.S. 602, 71 S.Ct. 508, 95 L.Ed. 573. See Crutcher v. Kentucky, 141 U.S. 47, 57, 11 S.Ct. 851, 853, 35 L.Ed. 649; International Textbook Co. v. Pigg, 217 U.S. 91, 30 S.Ct. 481, 54 L.Ed. 678; Aero Mayflower Transit Co. v. Commissioners, 332 U.S. 495, 68 S.Ct. 167, 92 L.Ed. 99. Nor can the County indirectly enforce the unconstitutional privilege tax of § 4 by denying the driver's permit without explanation. Thus it is clear that this ordinance purports to impose an unconstitutional burden on foreign commerce. While it is possible that appellants' permits were denied for some other, and valid reason, only the County (not appellants) could show that this is true. Since the County has offered no explanation for prohibiting appellants from engaging in foreign commerce within the County, the judgment should be reversed and the cause remanded for such action as might be deemed desirable and not inconsistent with this opinion.
*
'Applicants for such permits shall file applications therefor with the sheriff of the County of San Diego on a form furnished by the sheriff which, when completed, will contain full personal information concerning the applicant.
'Upon obtaining a permit as herein required the holder of such permit shall be entitled to an identification card of such design, and bearing such number as the sheriff may prescribe, upon payment of a fee of $1.00 annually, therefor, which shall be paid by the applicant to the tax collector and shall be due on the 1st day of June of each year. Such card shall be carried by the permittee during all business hours and shall not be transferable.
'Each applicant for a permit shall be examined by the sheriff as to his knowledge of the provisions of this ordinance, the Vehicle Code, traffic regulations and the geography of the county, and if the result of the examination is unsatisfactory he shall be refused a permit. The sheriff may deny the application or having issued the permit may revoke the same if the sheriff shall determine that the applicant or taxicab driver is of bad moral character or is guilty of violation of any of the provisions of this ordinance or of any lawful regulation promulgated pursuant thereto or has been convicted of any offense involving moral turpitude.'
1
'Section 9. (Amended by Ord. No. 609 (New Series) adopted 5—12—47; and again amended by Ord. 958 (New Series) adopted 4—10 50, to read as follows:) It shall be unlawful for any person to drive or to be in actual physical control of any taxicab in the unincorporated area of the County of San Diego without first obtaining a permit in writing so to do from the sheriff of the County of San Diego.
'Applicants for such permits shall file applications therefor with the sheriff of the County of San Diego on a form furnished by the sheriff which, when completed, will contain full personal information concerning the applicant.
'Upon obtaining a permit as herein required the holder of such permit shall be entitled to an identification card of such design, and bearing such number as the sheriff may prescribe, upon payment of a fee of $1.00 annually, therefor, which shall be paid by the applicant to the tax collector and shall be due on the 1st day of June of each year. Such card shall be carried by the permittee during all business hours and shall not be transferable.
'Each applicant for a permit shall be examined by the sheriff as to his knowledge of the provisions of this ordinance, the Vehicle Code, traffic regulations and the geography of the county, and if the result of the examination is unsatisfactory he shall be refused a permit. The sheriff may deny the application or having issued the permit may revoke the same if the sheriff shall determine that the applicant or taxicab driver iis of bad moral character or is guilty of violation of any of the provisions of this ordinance or of any lawful regulation promulgated pursuant thereto or has been convicted of any offense involving moral turpitude. * * *'
2
See Calif.Penal Code § 1466; Calif.Const. Art. VI, § 4; People v. McKamy, 168 Cal. 531, 143 P. 752; People v. Reed, 13 Cal.App.2d 39, 56 P.2d 240.
3
Opinion of the Superior Court, Appellate Department. 101 Cal.App.2d Supp. 912, 914, 226 P.2d 87, 89.
4
Since appellants are complaining of the denial of the permits, not of exaction of the $1 fee, we assume, without deciding, that San Diego County can constitutionally require a $1 fee for the identification card, on the theory that the $1 is reasonably calculated to reimburse the County for the costs of administering its valid traffic regulations.
5
Union Brokerage Co. v. Jensen, 322 U.S. 202, 211—212, 64 S.Ct. 967, 973, 88 L.Ed. 1227: 'In the absence of applicable federal regulation, a State may impose non-discriminatory regulations on those engaged in foreign commerce 'for the purpose of insuring the public safety and convenience; * * * a license fee no larger in amount than is reasonably required to defray the expense of administering the regulations may be demanded.' Sprout v. (City of) South Bend, 277 U.S. 163, 169, 48 S.Ct. 502, 504, 72 L.Ed. 833.'
6
Because the regulation here attacked should fall in any event, it is not necessary to consider what, if any, effect the existing federal legislation might have on the validity of this ordinance. See 49 U.S.C. (1946 ed.) § 303(b)(2), 49 U.S.C.A. § 303(b)(2). See also 49 CFR (1949 ed.) § 192.2.
7
South Carolina State Highway Department v. Barnwell Bros., Inc., 303 U.S. 177, 58 S.Ct. 510, 82 L.Ed. 734. Cf. Morf v. Bingaman, 298 U.S. 407, 56 S.Ct. 756, 80 L.Ed. 1245; Central Greyhound Lines, Inc. v. Mealey, 334 U.S. 653, 68 S.Ct. 1260, 92 L.Ed. 1633.
8
The opinion reads in part: 'The defendants * * * advance the following contentions: * * * That the fifty dollar license fee is an unreasonable burden on foreign commerce. * * * The defendants contend that the fifty dollar annual license fee is an unreasonable burden on foreign commerce. There is no evidence in the stipulated facts as to the cost of enforcing the Ordinance, and, in the absence of such evidence, the Court will assume that the fee was reasonable.' This objection was pressed throughout the appeal in the Superior Court and in this Court.
9
The Superior Court opinion refers to bad moral character as a proper ground for denial of permits. Without a record showing as to the facts upon which that conclusion is based, we cannot appraise the significance of the comment.
10
'Section 4. (Amended by Ord. No. 958 adopted 4—10—50, and amended again by Ord. No. 964 (New Series) adopted 5—22—50 to read as follows:) Within 10 days from the effective date of this ordinance every taxicab operator shall apply to the sheriff and procure from the Tax Collector a license and pay an annual license fee of $50.00 (plus $1.00 per year per taxicab), which shall be paid by the applicant to the Tax Collector and shall be due on the first day of June of each year. Licenses issued subsequent to the first day of September, the first day of December, and the first day of March shall be issued at a quarterly reduction of $12.50 per quarter. * * *'
| 78
|
343 U.S. 1
72 S.Ct. 451
96 L.Ed. 717
SACHER et al.v.UNITED STATES.
No. 201.
Argued Jan. 9, 1952.
Decided March 10, 1952.
Rehearing Denied April 21, 1952.
See 343 U.S. 931, 72 S.Ct. 756.
[Syllabus from pages 1-2 intentionally omitted]
Mr. Paul L. Ross, New York City, for petitioners.
Mr. Philip B. Perlman, Sol. Gen., Washington, D.C., for respondent.
Mr. Justice JACKSON delivered the opinion of the Court.
1
After a turbulent nine months of trial, eleven Communist Party leaders were convicted of violating the Smith Act, 18 U.S.C.A. § 2385.1 On receiving the verdict, the trial judge at once filed a certificate under Rule 42(a), Fed.Rules Crim.Proc., 18 U.S.C.A., finding petitioners guilty of criminal contempt and imposing various jail terms up to six months. Those sentenced were defense counsel, with the exception of one defendant who had elected to conduct his own case.
2
The Court of Appeals reviewed the judge's action, both on facts and law, reversed some specifications of contempt, but affirmed the conviction and sentences.2 Judge Augustus Hand, who favored affirmance on all charges, pronounced petitioners' conduct concerted and wilfully obstructive and described it as including 'persistent obstructive colloquies, objections, arguments, and many groundless charges against the court * * *.'3 Judge Frank, who favored reversal of those specifications which were reversed, declared that the court affirmed the remaining ones 'only because of the lawyers' outrageous conduct—conduct of a kind which no lawyer owes his client, which cannot ever be justified, and which was never employed by those advocates, for minorities or for the unpopular, whose courage has made lawyerdom proud.'4 Judge Clark, who would have reversed the entire judgment because of the procedure under consideration by us, began his opinion: 'To one schooled in Anglo-Saxon traditions of legal decorum, the resistance pressed by these appellants on various occasions to the rulings of the trial judge necessarily appears abominable.'5
3
The actual effect of petitioner's conduct on the trial and on the burden of subsequent courts in reviewing an unnecessarily large record also was noted by a differently composed Court of Appeals when they sought reversal of their clients' conviction and assigned misconduct and bias of the trial judge as one of the grounds. The Court found that it could not consider the accusations against the judge separately from behavior of counsel. It unanimously found their charges against the trial judge 'completely unconvincing,' and of their own conduct said, 'All was done that could contribute to make impossible an orderly and speedy dispatch of the case * * *.'6 The nature of this obstruction was thus described: 'The record discloses a judge, sorely tried for many months of turmoil, constantly provoked by useless bickering, exposed to offensive slights and insults, harried with interminable repetition, who, if at times he did not conduct himself with the impeturbability of a Rhadamanthus, showed considerably greater self-control and forbearance than it is given to most judges to possess.'7
4
We denied petition for further review of the contempt issue.8 On reconsideration, however, the importance of clarifying the permissible practice in such cases persuaded us to grant certiorari, limited to one question of procedure on which there was disagreement in the court below. Our order stated the issue for consideration: '* * * The sole question for review is: Was the charge of contempt, as and when certified, one which the accusing judge was authorized under Rule 42(a) * * * to determine and punish himself; or was it one to be adjudged and punished under Rule 42(b) only by a judge other than the accusing one and after notice, hearing, and opportunity to defend?'9
5
The certificate of contempt fills sixty pages of our record and incorporates, by reference, the 13,000 pages of trial record. The certificate in full10 and summary of relevant evidence have been reported below. Because our limited review does not require or permit reexamination of the facts, no purpose would be served by detailed recitals. It is relevant to the questions of law to observe that the behavior punished as a result of the Court of Appeals' judgment has these characteristics: It took place in the immediate presence of the trial judge; it consisted of breaches of decorum and disobedience in the presence of the jury of his orders and rulings upon the trial; the misconduct was professional in that it was that of lawyers, or of a layman acting as his own lawyer. In addition, conviction is not based on an isolated instance of hasty contumacious speech or behavior, but upon a course of conduct long-continued in the face of warnings that it was regarded by the court as contemptuous. The nature of the deportment was not such as merely to offend personal sensitivities of the judge, but it prejudiced the expeditious, orderly and dispassionate conduct of the trial.
6
We have taken no issue as to the statute which confers power on a federal court to punish for contempt,11 but only as to the regularity of the procedure under Rule 42,12 designed to provide for the manner of exercising that power. The issue we accepted for review is a narrow one. Petitioners do not deny that they might have been summarily punished for their conduct without hearing under Rule 42(a) if the trial judge had acted at once upon occurrence of each incident. But it is contended that this power of summary punishment expired by reason of two circumstances: (1) that the trial judge awaited completion of the trial, at which time its progress could no longer be obstructed, and hence, it is said, summary action had become unnecessary; and (2) that he included in the certificate a charge that the contemptuous instances were the result of agreement between counsel which, if it existed, was not made in his presence. Therefore, it is argued that petitioners could not be convicted or sentenced except after notice, time for preparation of a defense, and hearing, probably before another judge, as provided in Rule 42(b).
7
Rule 42 obviously was intended to make more explicit 'the prevailing usages at law' by which the statute has authorized punishment of contempts. 18 U.S.C. §§ 401, 402, 18 U.S.C.A. §§ 401, 402. No legislative history sheds light on this issue. Practice of District Judges has not been uniform when they have deemed resort to the power necessary.13 A variety of questions concerning contempt powers, limitations and procedures have been considered by this Court,14 but none construed this Rule, which was promulgated by this Court in 1944 and became effective March 26, 1946. Cases prior to it grew out of facts so distinguishing that their decisions are of little value as precedents.
8
Summary punishment always, and rightly, is regarded with disfavor and, if imposed in passion or pettiness, brings discredit to a court as certainly as the conduct it penalizes. But the very practical reasons which have led every system of law to vest a contempt power in one who presides over judicial proceedings also are the reasons which account for it being made summary. Our criminal processes are adversary in nature and rely upon the self-interest of the litigants and counsel for full and adequate development of their respective cases. The nature of the proceedings presupposes, or at least stimulates, zeal in the opposing lawyers. But their strife can pervert as well as aid the judicial process unless it is supervised and controlled by a neutral judge representing the overriding social interest in impartial justice and with power to curb both adversaries. The rights and immunities of accused persons would be exposed to serious and obvious abuse if the trial bench did not possess and frequently exert power to curb prejudicial and excessive zeal of prosecutors. The interests of society in the preservation of courtroom control by the judges are no more to be frustrated through unchecked improprieties by defenders.
9
Of course, it is the right of counsel for every litigant to press his claim, even if it appears farfetched and untenable, to obtain the court's considered ruling. Full enjoyment of that right, with due allowance for the heat of controversy, will be protected by appellate courts when infringed by trial courts. But if the ruling is adverse, it is not counsel's right to resist it or to insult the judge—his right is only respectfully to preserve his point for appeal. During a trial, lawyers must speak, each in his own time and within his allowed time, and with relevance and moderation. These are such obvious matters that we should not remind the bar of them were it not for the misconceptions manifest in this case.
10
The Rule in question contemplates that occasions may arise when the trial judge must immediately arrest any conduct of such nature that its continuance would break up a trial, so it gives him power to do so summarily. But the petitioners here contend that the Rule not only permits but requires its instant exercise, so that once the emergency has been survived punishment may no longer be summary but can only be administered by the alternative method allowed by Rule 42(b). We think 'summary' as used in this Rule does not refer to the timing of the action with reference to the offense but refers to a procedure which dispenses with the formality, delay and digression that would result from the issuance of process, service of complaint and answer, holding hearings, taking evidence, listening to arguments, awaiting briefs, submission of findings, and all that goes with a conventional court trial. The purpose of that procedure is to inform the court of events not within its own knowledge. The Rule allows summary procedure only as to offenses within the knowledge of the judge because they occurred in his presence.
11
Reasons for permitting straightway exercise of summary power are not reasons for compelling or encouraging its immediate exercise. Forthwith judgment is not required by the text of the Rule. Still less is such construction appropriate as a safeguard against abuse of the power. If the conduct of these lawyers warranted immediate summary punishment on dozens of occasions, no possible prejudice to them can result from delaying it until the end of the trial if the circumstances permit such delay. The overriding consideration is the integrity and efficiency of the trial process, and if the judge deems immediate action inexpedient he should be allowed discretion to follow the procedure taken in this case. To summon a lawyer before the bench and pronounce him guilty of contempt is not unlikely to prejudice his client. It might be done out of the presence of the jury, but we have held that a contempt judgment must be public.15 Only the naive and inexperienced would assume that news of such action will not reach the jurors. If the court were required also then to pronounce sentence, a construction quite as consistent with the text of the Rule as petitioners' present contention, it would add to the prejudice. It might also have the additional consequence of depriving defendant of his counsel unless execution of prison sentence were suspended or stayed as speedily as it had been imposed. The procedure on which petitioners now insist is just the procedure most likely to achieve the only discernible purpose of the contemptuous conduct. Had the trial judge here pursued that course, they could have made a formidable assertion that it was unfair to them or to their clients and that a new trial was required on account of it.
12
In this case counsel repeatedly were warned that their conduct was regarded as contemptuous. No claim can be made that the judge awaited the close of the trial to pounce upon them for some offense unnoted at the time it occurred. If we were to hold that summary punishment can be imposed only instantly upon the event, it would be an incentive to pronounce, while smarting under the irritation of the contemptuous act, what should be a well-considered judgment. We think it less likely that unfair condemnation of counsel will occur if the more deliberate course be permitted.
13
We hold that Rule 42 allows the trial judge, upon the occurrence in his presence of a contempt, immediately and summarily to punish it, if, in his opinion, delay will prejudice the trial. We hold, on the other hand, that if he believes the exigencies of the trial require that he defer judgment until its completion he may do so without extinguishing his power.
14
The other reason ascribed for reversing this case is that the accusing judge charged the petitioners, among other things, with an agreement deliberately entered into in a cold and calculated manner, 'to impair my health.' It is not charged that such an agreement was made in the presence of the judge. We need not determine whether a proper construction of the certificate would be that the concert of action which did take place in his presence amounted to an implied agreement or as charging an earlier express verbal agreement to act in concert. This specification was reversed by the Court of Appeals, which, however, found the judgment amply sustained without it, and considered the substantive offenses separable and independent, as do we. It found the judgment amply sustained without the conspiracy count. The sentences ran concurrently, so reversal of one does not require reversal of the other.
15
A construction of the Rule is advocated which would deny a judge power summarily to punish a contempt that is personal to himself except, perhaps, at a moment when it is necessary to forestall abortion of the trial. His only recourse, it is said, is to become an accuser or complaining witness in a proceeding before another judge.
16
The Rule itself expresses no such limitation, and the contrary inference is almost inescapable. It is almost inevitable that any contempt of a court committed in the presence of the judge during a trial will be an offense against his dignity and authority. At a trial the court is so much the judge and the judge so much the court that the two terms are used interchangeably in countless opinions in this Court and generally in the literature of the law, and contempt of the one is contempt of the other. It cannot be that summary punishment is only for such minor contempts as leave the judge indifferent and may be evaded by adding hectoring, abusive and defiant conduct toward the judge as an individual. Such an interpretation would nullify, in practice, the power it purports to grant.
17
We are urged that these sentences will have an intimidating effect on the legal profession, whose members hereafter will decline to appear in trials where 'defendants are objects of hostility of those in power,' or will do so under a 'cloud of fear' which 'threatens the right of the American people to be represented fearlessly and vigorously by counsel.'
18
That contempt power over counsel, summary or otherwise, is capable of abuse is certain. Men who make their way to the bench sometimes exhibit vanity, irascibility, narrowness, arrogance, and other weaknesses to which human flesh is heir. Most judges, however, recognize and respect courageous, forthright lawyerly conduct. They rarely mistake overzeal or heated words of a man fired with a desire to win, for the contemptuous conduct which defies rulings and deserves punishment. They recognize that our profession necessarily is a contentious one and they respect the lawyer who makes a strenuous effort for his client.
19
The profession knows that no lawyer is at the mercy of a single federal trial judge. This case demonstrates that before punishment takes effect he may have appeal on law and fact to the Court of Appeals. Petitioners, as yet, have served no part of their sentences but have been enlarged on bail while their conduct has been directly reviewed by one Court of Appeals on their own appeal and considered indirectly by a differently composed Court of Appeals on their clients' appeal. Some of those judges had trial and appellate experience almost unparalleled in length and variety. These lawyers have not been condemned, as they claim, merely by the impulse of one lone and hostile judge. Their conduct has been condemned by every judge who has examined this record under a duty to review the facts. It is to be doubted whether the profession will be greatly terrorized by punishment of some of its members after such extended and detached consideration. Moreover, if power of contempt excites fear and terror in the bar, it would hardly be relieved by upholding petitioners' contention that the judge may proceed against a lawyer at the precise moment of maximum heat but may not do so if he awaits a cooler second thought.
20
We are not unaware or unconcerned that persons identified with unpopular causes may find it difficult to enlist the counsel of their choice. But we think it must be ascribed to causes quite apart from fear of being held in contempt, for we think few effective lawyers would regard the tactics condemned here as either necessary or helpful to a successful defense. That such clients seem to have thought these tactics necessary is likely to contribute to the bar's reluctance to appear for them rather more than fear of contempt.
21
But that there may be no misunderstanding, we make clear that this Court, if its aid be needed, will unhesitatingly protect counsel in fearless, vigorous and effective performance of every duty pertaining to the office of the advocate on behalf of any person whatsoever. But it will not equate contempt with courage or insults with independence. It will also protect the processes of orderly trial, which is the supreme object of the lawyer's calling.
22
Affirmed.
23
Mr. Justice CLARK took no part in the consideration or decision of this case.
24
Mr. Justice BLACK, dissenting.
25
I would reverse these convictions because of my belief that (1) the Judge should not have passed on the contempt charges he preferred; (2) whatever judge considered the charges, guilt should not have been summarily decided as it was—without notice, without a hearing and without an opportunity for petitioners to defend themselves; (3) petitioners were constitutionally entitled to have their guilt or innocence of criminal contempt decided by a jury.
26
After a nine months' trial of leaders of the Communist Party a jury brought in a verdict of guilty and was discharged. Immediately, presiding Judge Medina asked all the defendants' lawyers1 to stand up, then read them a very minor part of a lengthy 'contempt certificate' in which they were alleged to have committed many acts of contempt at various times during the protracted trial. Without affording any of them a chance to say a word before he acted, the presiding Judge held all of them guilty of contempt and sentenced each one to prison.
27
First. I think it was a grave error for the Judge to pass on the charges he brought. Reasons why he should not have doen so have been forcefully presented by Mr. Justice FRANKFURTER here and by Judge Charles Clark in the Court of Appeals. Their arguments that Judge Medina should not have made these adjudications are vividly buttressed by the collection of trial episodes placed in the appendix to Mr. Justice FRANKFURTER'S opinion. 72 S.Ct. 471. These episodes bespeak an attitude of distrust of the lawyers and, I regret to add, of hostility to them generally deemed inconsistent with that complete impartiality the process of judging demands. Facts that appear of special importance to me in considering what were the Judge's personal feelings towards those he convicted are these:
28
The presiding Judge was convinced that the lawyers had deliberately and calculatingly badgered and insulted him throughout the long months of trial. Among these insults, so the Judge believed and declared, were insolent, sarcastic, impudent and disrespectful charges that he angled for newspaper headlines; connived with the United States Attorney; entertained racial prejudice; judicially acted with 'bias, prejudice, corruption, and partiality.' He found and repeatedly declared that these lawyers were acting in concerted agreement in an attempt to create confusion, provoke incidents and break down his health. As the trial progressed, the record shows that the Judge expressed stronger and stronger fears that the alleged conspiracy to destroy his health was about to succeed. This belief may explain his sharp and somewhat heated repartee in his frequent controversies with counsel. But whatever the provocation, the record shows a constantly growing resentment of the Judge against the lawyers.
29
The Judge's distrust of and disrespect for the lawyers clearly appear from his frequent charges that their statements were false and unreliable. These repeated accusations, as particularly shown by the following colloquy, impress me as showing such bitter hostility to the lawyers that the accuser should be held disqualified to try them:
30
'Mr. Sacher: I am offended on these constant aspersions on the veracity of representations that I make. I am an officer of this court and I resent these—
31
'The Court: There was an instance when you deliberately lied to me when they were passing these press releases. You said that they were not and you were caught red-handed.
32
'Mr. Sacher: That is the most offensive charge that can be made against an officer of the court. * * * What has a lawyer got but his honor.
33
'The Court: * * * You were caught red-handed.
34
'Mr. Sacher: That is the most detestable thing I ever heard from a judge. I resent that and I urge that it be expunged from the record. * * * I will defend my honor as a member of the bar against your honor or anybody else. * * * I think an idiot resorts to lying. I don't have to do it.
35
'The Court: You did it.
36
'We better let these little amenities go. I can see from your belligerent manner if you thought you could, you might physically come up to the bench and physically attack me. I know your manner and it doesn't frighten me in the slightest degree.'2
37
Liar ordinarily is a fighting word spoken in anger to express bitter personal hostility against another. I can think of no other reason for its use here, particularly since the Judge's charge was baseless.3 And the Judge's personal feeling towards these lawyers, Sacher in particular, is further indicated by an occurrence immediately after they had been sentenced. Sacher asked and was granted the privilege of making a brief statement. This statement was relevant and dignified.4 Nevertheless the Judge interrupted him and used this language to a lawyer he had just abruptly and summarily sentenced to prison: 'You continue in the same brazen manner that you used throughout the whole trial * * * despite all kinds of warnings, throughout the case, you continue with the same old mealy-mouth way of putting it which I have been listening to throughout the case.' (Emphasis supplied.) Candor compels me to say that in this episode the decorum and dignity of the lawyer who had just been sentenced to prison loses nothing by comparison with others.
38
Certainly repeatedly calling a lawyer a liar marks a drastic deviation from the desirable judicial standard. A judge who does this should no more be permitted to try the lawyer he accuses than a judge should be permitted to try his own case. Cf. Tumey v. State of Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749. No man should be forced to trial before a judge who has previously publicly attacked his personal honor and integrity. The risk to impartial justice is too great.
39
Second. Before sentence and conviction these petitioners were accorded no chance at all to defend themselves. They were not even afforded on opportunity to challenge the sufficiency or the accuracy of the charges. Their sentences were read to them but the full charges were not. I cannot reconcile this summary blasting of legal careers with a fair system of justice. Such a procedure constitutes an overhanging menace to the security of every courtroom advocate in America. The menace is most ominous for lawyers who are obscure, unpopular or defenders of unpopular persons or unorthodox causes.
40
Conviction without trial is not only inherently unfair in the first court, but the unfairness is carried up to the appellate level. This case proves that. A fair review requires scrutiny of 13,000 pages of evidence most of which is irrelevant. For the contempt certificate states: 'As isolated quotations from or references to the transcript can give but a partial view of the acts, statements, and conduct above referred to, I hereby make the entire record part of these proceedings.' Such a record obscured the lawyer's trial conduct in a maze of evidence that has nothing to do with their own guilt or innocence. It is not surprising that this Court shrinks from reading such a record; it refuses to do so. No assertion is made that the Court of Appeals waded through it. Consequently there is every indication that the Court of Appeals appraised the factual accuracy of Judge Medina's charges on a basis deemed by him as 'inadequate' because presenting only 'a partial view' of the numerous court-lawyer controversies.5 Such an 'inadequate' basis of review is to be expected since no hearing was held which could have framed concrete issues and focused attention on evidence relevant to them.
41
There are other manifest elements of unfairness in a system which calls on appellate courts to judge the trial conduct of lawyers accused of contempt on the basis of all evidence introduced against their clients in a prior criminal case. This unfairness is particularly emphasized here. The root of Judge Medina's charges was that these lawyers followed a concerted course deliberately designed to bring the whole judicial system into public contempt and disgrace. Their clients were Communist leaders. Much of the 13,000 pages of evidence was offered to show that they planned to subvert and destroy all governmental institutions, including courts. Unless we are to depart from high traditions of the bar, evil purposes of their clients could not be imputed to these lawyers whose duty it was to represent them with fidelity and zeal. Yet from the very parts of the record which Judge Medina specified, it is difficult to escape the impression that his inferences against the lawyers were colored, however unconsciously, by his natural abhorrence for the unpatriotic and treasonable designs attributed to their Communist leader clients. It appears to me that if there have ever been, or can ever be, cases in which lawyers are entitled to a full hearing before their liberty is forfeited and their professional hopes are blighted, these are such cases.
42
For reasons stated above and for reasons stated in the dissent of Mr. Justice FRANKFURTER and the dissent of Judge Charles Clark, I think these cases should be reversed because Judge Medina denied petitioners a hearing. But I would reverse on the further ground that petitioners are entitled to all the constitutional safeguards provided to protect persons charged with crime, including a trial by jury.
43
Third. Art. III, § 2 of the Constitution provides that 'The Trial of all Crimes * * * shall be by Jury.' Not satisfied with this single protection for jury trial, the Founders reemphasized the guaranty by declaring in the Sixth Amendment that 'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury * * *.' And the Fifth Amendment provides that 'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury * * *.' These contempt proceedings are 'criminal prosecutions' brought to avenge an alleged public wrong. Petitioners were imprisoned for terms up to six months, but these terms could have been longer. The Government's position in United States v. United Mine Workers of America, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884, was that the amount of punishment for the crime of contempt can be fixed at a judge's discretion, with no limit but the Eighth Amendment's prohibition against cruel and unusual punishment. Certainly, petitioners have been sentenced for crimes.6 Consequently these lawyers have been wrongfully deprived of the jury benefits of the foregoing constitutional provisions unless they are inapplicable to the crime of contempt.
44
There are undoubtedly sayings in some past opinions of this Court broad enough to justify what was done here. Indeed judges and perhaps lawyers pretty generally subscribe to the doctrine that judicial institutions would be imperiled if judges were without power summarily to convict and punish for courtroom offenses. Our recent decisions, however, have expressed more cautious views about the judicial authority to punish for contempt. Returning to the early views of this Court, we have marked the limits of that authority as being 'the least possible power adequate to the end proposed.' In re Oliver, 333 U.S. 257, 274, 68 S.Ct. 499, 508, 92 L.Ed. 682; In re Michael, 326 U.S. 224, 66 S.Ct. 78, 90 L.Ed. 30. The 'end proposed' is 'power adequate' in the court to preserve order and decorum and to compel obedience to valid court orders. To achieve these ends—decorum and obedience to orders—courts must have power to act immediately, and upon this need the power of contempt rests. Concurring opinion, United States v. United Mine Workers of America, supra, 330 U.S. at 331—332, 67 S.Ct. at page 714, 91 L.Ed. 884. Measured by this test, as Judge Charles Clark's dissenting opinion pointed out, there was no necessity here for Judge Medina's summary action, because the trial was over and the danger of obstructing it was passed. For the same reason there was no longer need, so far as that trial was concerned, to try petitioners for their courtroom conduct without benefit of the Bill of Rights procedural safeguards.
45
A concurring judge in the Court of Appeals feared that it might bring about 'demoralization of the court's authority' should any one other than Judge Medina try the case. The reason given was: 'For instance, in all likelihood, at a trial of the lawyers, Sacher would introduce the testimony of himself and others in an effort to prove that he was not 'angrily shouting,' as charged in Specification VII, and did not speak 'in an insolent manner,' as charged in Specification VIII; Gladstein would similarly seek to prove there he did not 'angrily' advance 'toward the bench' or make remarks in a 'truculent manner,' as charged in Specification VIII, and did not speak to the judge 'in a sarcastic and impertinent manner's as charged in Specification XI, etc., etc.' 182 F.2d 416, 461. What would be wrong with this? Are defendants accused by judges of being offensive to them to be conclusively presumed guilty on the theory that judges' observations and inferences must be accepted as infallible? There is always a possibility that a judge may be honestly mistaken. Unfortunately history and the existence of our Bill of Rights indicate that judicial errors may be from worse causes.
46
The historic power of summary contempt grew out of the need for judicial enforcement of order and decorum in the courtroom and to compel obedience to court orders. I believe the idea of judges having unrestricted power to by-pass the Bill of Rights in relation to criminal trials and punishments is an illegitimate offspring of this historic coercive contempt power. It has been said that such a 'summary process of the Star Chamber slipped into the common law courts,' and that the alleged ancient history to support its existence is 'fiction.'7 With the specific reservation that I think summary contempt proceedings may be employed solely to enforce obedience and order, and not to impose unconditional criminal punishment, I agree with this statement of Mr. Justice Holmes: 'I would go as far as any man in favor of the sharpest and most summary enforcement of order in court and obedience to decrees, but when there is no need for immediate action contempts are like any other breach of law and should be dealt with as the law deals with other illegal acts.' Toledo Newspaper Co. v. United States, 247 U.S. 402, 425—426, 38 S.Ct. 560, 566, 62 L.Ed. 1186.
47
I believe these petitioners were entitled to a jury trial. I believe a jury is all the more necessary to obtain a fair trial when the alleged offense relates to conduct that has personally affronted a judge. The majority here and the majority below appear to have affirmed these convictions on the assumption that appellate review so fully guarantees a fair trial that it is an adequate substitute for trial by jury. While I agree that the power of lawyer-judges to set aside convictions deemed prejudicial or erroneous is one vital safeguard of liberty, I cannot agree that it affords the full measure of security which the Constitution has provided against unjust convictions.8 Preference for trial by a jury of laymen over trial by lawyer-judges lies behind the constitutional guarantee of trial by jury. I am among those who still believe in trial by jury as one of the indispensable safeguards of liberty.
48
Mr. Justice FRANKFURTER, dissenting.
49
Bitter experience has sharpened our realization that a major test of true democracy is the fair administration of justice. If the conditions for a society of free men formulated in our Bill of Rights are not to be turned into mere rhetoric, independent and impartial courts must be available for their enforcement. To that end, courts must have the power to deal with attempts to disrupt the course of justice. This safeguard concens not merely the litigants in a particular case; it is everyone's concern. The impartial administration of justice presupposes the dignified and effective conduct of judicial proceedings. That in turn is dependent on a proper atmosphere in the courtroom. Thus, the power of courts to punish for contempt is a means of assuring the enforcement of justice according to law. The protection of the most generously conceived civil liberties presupposes a court overawed neither by interests without nor by disruptive tactics within the courtroom. Such is the teaching of the history of Englishspeaking nations.
50
No decision of this Court has rejected this teaching. Certainly none of the professions of the Court's opinions has. While, to be sure, in a few instances restrictions too confining and, from my point of view, unwarranted have been placed upon this power of courts to punish for contempt, the power itself has never been denied. The Federal courts may, under appropriate circumstances, inflict punishment for contempt without those constitutional procedural safeguards necessary for the prosecution of crime in its historical and colloquial sense.
51
But this power does not authorize the arbitrary imposition of punishment. To dispense with indictment by grand jury and trial by a jury of twelve does not mean the right to disregard reason and fairness. Reason and fairness demand, even in punishing contempt, procedural safeguards within which the needs for the effective administration of justice can be amply satisfied while at the same time the reach of so drastic a power is kept within limits that will minimize abuse. While experience has shown the necessity of recognizing that courts possess this authority, experience has also proven that restrictions appropriate to the purposes of the power must fence in its exercise. Hence Congress, by legislation dating back more than a hundred years, has put geographic and procedural restrictions upon the power of United States courts to punish summarily for contempt. See Michaelson v. United States, 266 U.S. 42, 45 S.Ct. 18, 69 L.Ed. 162; Nye v. United States, 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172. And even before Congress drew on its power to put limits on inherent judicial authority, this Court derived the general boundaries of this power from its purpose, see Anderson v. Dunn, 6 Wheat. 204, 5 L.Ed. 242; more recently, the Court has defined the procedure appropriate for its exercise. See Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767.
52
The Court did so for a reason deeply imbedded in our legal system and by that very fact too often neglected. Times of tension, which are usually periods of war and their aftermath, bring it to the surface. Reflecting no doubt their concern over untoward events in law enforcement arising out of the First World War, Mr. Justice Brandeis and Mr. Justice Holmes gave quiet warning when they observed that 'in the development of our liberty insistence upon procedural regularity has been a large factor.' Burdeau v. McDowell, 256 U.S. 465, 477, 41 S.Ct. 574, 576, 65 L.Ed. 1048. It is not for nothing that most of the provisions of our Bill of Rights are concerned with matters of procedure.
53
That is what this case is about—'procedural regularity.' Not whether these petitioners have been guilty of conduct professionally inexcusable, but what tribunal should sit in judgment; not whether they should be punished, but who should mete out the appropriate punishment; not whether a Federal court has authority to prevent its proceedings from being subverted, but how that authority should be exercised so as to assure the rectitude of legal proceedings and at the same time not detract from
54
This case arise out of the trial of the eleven Communist Party leaders whose convictions were sustained in Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137. In many ways it was a trial wholly out of the ordinary—in its length, the nature of the issues, the political and emotional atmosphere in which they were enveloped, the conduct of court and counsel, the conflicts between them. After several weeks of proceedings on pre-trial motions, the trial proper got under way. Nine weeks were consumed in getting a jury and thirty more in trying the case to the jury. Immediately after the jury brought in the verdict of guilty against the defendants, the trial judge charged the five defense lawyers and one of the defendants (who had conducted his own defense) with contempt of court during the trial. He filed a carefully prepared, elaborate certificate of contempt containing forty charges, and without further hearing found them guilty and imposed sentences ranging from thirty days' to six months' imprisonment. These specifications charged misconduct of a nature especially reprehensible when committed by lawyers who, as officers of the court, are part of our judicial system. As such they are under a duty to further, not obstruct, the rational and fair administration of justice.
55
The certificate on which petitioners were found guilty of contempt charged thirty-nine occurrences during the trial as thirty-nine items of misconduct. However, these specified items were not regarded by the judge as discreet instances. He deemed them manifestations of a conspiracy by the contemnors against him. To be sure, Specifications II to XL were individually charged and therefore are technically sustainable by themselves and not merely as overt acts of the conspiracy, set forth with much detail as Specification I. But the core of the charges—the gravamen of the accusations against these petitioners—was that the petitioners had 'joined in a wilful, deliberate, and concerted effort to delay and obstruct the trial of United States v. Foster et al., C 128—87, (9 F.R.D. 367) for the purpose of causing such disorder and confusion as would prevent a verdict by a jury on the issues raised by the indictment; and for the purpose of bringing the Court and the entire Federal judicial system into general discredit and disrepute, by endeavoring to divert the attention of the Court and jury from the serious charge against their clients of a conspiracy in substance to teach and advocate the overthrow of the Government of the United States by force and violence, by attacking the Presiding Judge and all the Judges of this Court, the jury system in this District, the Department of Justice of the United States, the President of the United States, the police of New York City, and the public press of New York and other cities.'
56
Though the certificate makes it plain enough, a reading of the record leaves no doubt that in the judge's mind the individual occurrences set forth in Specifications II to XL derived their chief significance from his finding that they were tributary to the design upon which the petitioners had embarked—a conspiracy against the judge in order to prevent a fair trial of the issues. He found them guilty of that. But the Court of Appeals reversed and the Government has not questioned this reversal of the trial judge—the convictions of the petitioners on the main charge, that of conspiracy. However, that court, with one judge dissenting, did sustain the convictions on thirty-seven other specifications. 182 F.2d 416. Convictions on two specifications were found unsupported by evidence. Ibid.
57
I would not remotely minimize the gravity of the conduct of which the petitioners have been found guilty, let alone condone it. But their intrinsic guilt is not relevant to the issue before us. This Court brought the case here in order to consider whether the trial court followed the proper procedure in determining that the misconduct of the petitioners subjected them to punishment. 342 U.S. 858, 72 S.Ct. 84. Time out of mind this Court has reversed convictions for the most heinous offenses, even though no doubt about the guilt of the defendants was entertained. It reversed because the mode by which guilt was established disregarded those standards of procedure which are so precious and so important for our society. So here, the only question for decision is whether, in the circumstances of this case, the trial judge himself should, without notice and hearing and after the successful termination of the trial, have summarily punished a series of contempts growing out of what he conceived to be a central mischievous design, committed over a period of nine months; or whether another judge, designated by the Chief Judge of the Court of Appeals or of the District Court for the Southern District of New York, should have heard, after due notice, the charges of contempt made by the trial judge. At the end of the trial the judge was not confronted with the alternatives of doing what he did or allowing the contemnors to go unpunished. The question was not punishment, but who should punish. Due regard for such procedural questions, too often misconceived as narrow and technical, alone justifies the truth of one of the great boasts of our democracy, the essential fairness of our judicial system.
58
The particular circumstances of this case compel me to conclude that the trial judge should not have combined in himself the functions of accuser and judge. For his accusations were not impersonal. They concerned matters in which he personally was deeply engaged. Whatever occasion may have existed during the trial for sitting in judgment upon clims of personal victimization, it ceased after the trial had terminated. It falls to this Court as head of the Federal judicial system to correct such abuse of judicial power.
59
All grants of power, including the verbally unlimited terms of Rule 42(a) of the Rules of Criminal Procedure, are subject to the inherent limitation that the power shall be fairly used for the purpose for which it is conferred. It is a limitation derived not merely from general considerations of reason but from the traditional concepts of the proper discharge of the judicial function. 'A criminal contempt may be punished summarily,' so runs Rule 42(a), 'if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court.' The Rule merely permits summary punishment. It does not command summary punishment of all contempts 'committed in the actual presence of the court,' in all circumstances and at any time. That there are unexpressed limits to this power is recognized even by the Government. For it concedes that a judge could not summarily punish contempt without notice and hearing at any undefined time long after it has occurred in his presence. In short, Rule 42(a), which in 1946 declared what the law was,1 acknowledges an undefined power for imposing summary punishment without expressly laying down the boundaries of the power granted. Legislation normally carries such implications.
60
To recognize the generality of a power is the beginning not the end of the inquiry whether in the specific circumstances which invoked the power due regard was had for the implied restrictions. Among the restrictions to be implied, as a matter of course, are two basic principles of our law—that no judge should sit in a case in which he is personally involved and that no criminal punishment should be meted out except upon notice and due hearing, unless overriding necessity precludes such indispensable safeguards for assuring fairness and affording the feeling that fairness has been done. Observance of these commonplace traditions has its price. It sometimes runs counter to public feeling that brooks no delay. At times it seems to entail a needlessly cumbersome process for dealing with the obvious. But as a process it is one of the cherished and indispensable achievements of estern civilization. It is his disregard of these controlling traditions that forces me to conclude that the district judge, however sorely tried, erred in using the summary contempt procedure in the circumstances before him.
61
Happily few such exercises of summary authority have come before this Court. Still rarer are the instances where a judge is deeply involved in the conduct on which he has to pass judgment. Such a situation did come here some twenty-five years ago in Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767. Mr. Chief Justice Taft then took occasion, on behalf of the whole Court, to lay down the guiding considerations which should have been followed in this case:
62
'The power of contempt which a judge must have and exercise in protecting the due and orderly administration of justice, and in maintaining the authority and dignity of the court, is most important and indispensable. But its exercise is a delicate one, and care is needed to avoid arbitrary or oppressive conclusions. This rule of caution is more mandatory where the contempt charged has in it the element of personal criticism or attack upon the judge. The judge must banish the slightest personal impulse to reprisal, but he should not bend backward, and injure the authority of the court by too great leniency. The substitution of another judge would avoid either tendency, but it is not always possible. Of course, where acts of contempt are palpably aggravated by a personal attack upon the judge, in order to drive the judge out of the case for ulterior reasons, the scheme should not be permitted to succeed. But attempts of this kind are rare. All of such cases, however, present difficult questions for the judge. All we can say upon the whole matter is that, where conditions do not make it impracticable, or where the delay may not injure public or private right, a judge called upon to act in a case of contempt by personal attack upon him, may, without flinching from his duty, properly ask that one of his fellow judges take his place. Cornish v. United States, 6 Cir., 299 F. 283, 285; Toledo Company v. United States, 6 Cir., 237 F. 986, 988.
63
'The case before us is one in which the issue between the judge and the parties had come to involve marked personal feeling that did not make for an impartial and calm judicial consideration and conclusion, as the statement of the proceedings abundantly shows. We think, therefore, the when this case again reaches the District Court to which it must be remanded, the judge who imposed the sentence herein should invite the senior Circuit Judge of the circuit to assign another judge to sit in the second hearing of the charge against the petitioner.' 267 U.S. at 539, 45 S.Ct. at page 395, 69 L.Ed. 767.
64
In the Cooke case the Court did much more than set aside a sentence of thirty days for contempt because 'the procedure pursued was unfair and oppressive,' 267 U.S. 517, 538, 45 S.Ct. 395. There, as here, the contempt was by a lawyer; there, as here, the trial court's action was affirmed by a Court of Appeals in an opinion by one of the most eminent judges of his day. 5 Cir., 295 F. 292. In reversing the two lower courts and finding an abuse of judicial discretion by the trial court, this Court did what it feels called upon to do from time to time in a class of cases that have a close kinship to matters deemed fundamental within the concept of Due Process. It defined the procedural standards to be observed by the lower courts. The general direction thus given to lower courts is not likely to be respected by them if this Court is too genial in enforcing its observance.
65
Enforcement is not had by repetition of generalities and sanction of their disregard in practice. We must start, no doubt, with a predisposition in favor of the propriety of a trial judge's action. His is the initial responsibility, and we must assume that the discretion with which he is entrusted will normally be exercised by judges of firmess, self-discipline, and good sense. These considerations should count heavily on review. But when men are given short shrift in being punished, abstract rules cannot dispense with the duty of the reviewing court imaginatively to re-create the courtroom drama. In order to save trial courts from being unduly hampered, it is not necessary to leave them with arbitrary power by relying on the presumption of judicial propriety to the exclusion of a sophisticated, even if indulgent, scrutiny of the record.
66
If we are to understand the circumstances in which the sentences under review were imposed, a close study of the record in the Dennis case cannot be avoided. The certificate of contempt incorporated the whole record of that case and made its findings on the basis of it. We cannot do less in passing on the propriety of the summary convictions. We cannot do less if we are to appraise fairly the power assumed by the trial court of punishing without further ado at the end of the trial conduct that took place during its long travail. This does not imply reviewing whether the conduct of these petitioners was contemptuous. The whole record is indispensably relevant to the procedural question which we brought here: how was such misconduct to be punished?
67
Deeply as I believe in the importance of giving wide and not niggardly scope to the discretionary powers of trial judges and with a lifelong regard for the wisdom of the judge who, on behalf of the Court of Appeals, found that the discretion of the trial judge was not abused, I cannot escape the conviction that another district judge should have tried the contempt issue. And this, though one may well assume that any other judge would have been compelled to find contempt in this case and might have imposed even severer sentences. Preserving and enhancing respect for law is always more important than sustaining the infliction of punishment in a particular case.
68
A reading of the fifteen volumes of testimony in the Dennis record leaves one with the strong feeling that the conduct found contemptuous was in the main directed against the trial judge personally and that the judge himself so regarded it. In the preamble of his contempt certificate he states that one of the purposes of the nefarious agreement with which he charged the lawyers was 'impairing my health so that the trial could not continue.' The great majority of the specific acts to 'effect this plan' had the judge personally as their target. The petitioners, so the judge found in Specification I,
69
'b. Suggested that various findings by the Court were made for the purpose of newspaper headlines;
70
'c. Insinuated that there was connivance between the Court and the United States Attorney;
71
'e. Persisted in making long, repetitious, and unsubstantial arguments, objections, and protests working in shifts, accompanied by shouting, sneering, and snickering;
72
'f. Urged one another on to badger the Court;
73
'g. Repeatedly made charges against the Court of bias, prejudice, corruption, and partiality;
74
'h. Made a succession of disrespectful, insolent, and sarcastic comments and remarks to the Court; 'k. Persisted in asking questions on excluded subject matters, knowing that objections would be sustained, to endeavor to create a false picture of bias and partiality on the part of the Court;
75
'l. Accused the Court of racial prejudice without any foundation; and
76
'm. Generally conducted themselves in a most provocative manner in an endeavor to call forth some intemperate or undignified response from the Court which could then be relied upon as a demonstration of the Court's unfitness to preside over the trial.'
77
The conviction on Specification I was, as already indicated, reversed by the Court of Appeals. But its theme underlies the whole certificate. It conveys inescapably what the judge deemed to have been the permeating significance of the behavior of these lawyers. The 'overt acts' listed in Specification I are but a compendium of the other specifications. At least twenty-nine of these describe conduct directed against the trial judge personally: charges of prejudice and racial bias, of collusion with the prosecution, of headline-seeking.
78
Not only were the contempts directed against the trial judge. The conduct of the lawyers had its reflex in the judge. At frequent intervals in the course of the trial his comments plainly reveal personal feeling against the lawyers, however much the course of the trial may have justified such feeling. On numerous occasions he expressed his belief that the lawyers were trying to wear him down, to injure his health, to provoke him into doing something that would show prejudice, or cause a mistrial or reversal on appeal.
79
The certificate of the trial judge quotes excerpts of the record from the principal case. But these excerpts are too brief for a picture that even remotely reveals the course of the trial. The specified contempts cannot properly be appraised with a view to determining the procedure appropriate for dealing with them, unless they are given a much more balanced perspective than can be got from the certificate of contempt. In order to put the specified contempts in their trial setting, an appendix to this opinion supplements the meager excerpts in the certificate. The only adequate way to document this case would be to make the whole Dennis record part of this opinion, as did the trial judge by reference in his certificate. But even within the limits of space imposed by an appendix it is indubitably established that the judge felt deeply involved personally in the conduct for which he punished the defense lawyers. He was not merely a witness to an occurrence, as would be a judge who observed a fist fight in his courtroom or brutal badgering of a witness or an impropriety towards the jury. The judge acted as the prosecuting witness; he thought of himself as such. His self-concern pervades the record; it could not humanly have been excluded from his judgment of contempt. Judges are human, and it is not suggested that any other judge could have been impervious to the abuse had he been subjected to it. But precisely because a judge is human, and in common frailty or manliness would interpret such conduct of lawyers as an attack on himself personally, he should not subsequently sit in judgment on his assailants, barring only instances where such extraordinary procedure is compellingly necessary in order that the trial may proceed and not be aborted.2
80
Summary punishment of contempt is concededly an exception to the requirements of Due Process. Necessity dictates the departure. Necessity must bound its limits. In this case the course of events to the very end of the trial shows that summary measures were not necessary to enable the trial to go on. Departure from established judicial practice, which makes it unfitting for a judge who is personally involved to sit in his own case, was therefore unwarranted. Neither self-respect nor the good name of the law required it. Quite otherwise. Despite the many incidents of contempt that were charged, the trial went to completion, nine months after the first incident, without a single occasion making it necessary to lay any one of the lawyers by the heel in order to assure that the trial proceed. The trial judge was able to keep order and to continue the court's business by occasional brief recesses calculated to cool passions and restore decorum, by periodic warnings to defense lawyers, and by shutting off obstructive arguments whenever rulings were concisely stated and firmly held to.
81
This, then, was not a situation in which, even though a judge was personally involved as the target of the contemptuous conduct, peremptory action against contemnors was necessary to maintain order and to salvage the proceedings. Where such action is necessary for the decorous continuance of a pending trial, disposition by another judge of a charge of contempt is impracticable. Interruption for a hearing before a separate judge would disrept the trial and thus achieve the illicit purpose of a contemnor.
82
But the administration of justice and courts as its instruments are vindicated, and lawyers who might be tempted to try similar tactics are amply deterred, by the assurance that punishment will be certain and severe regardless of the tribunal that imposes it. It is a disservice to the law to sanction the imposition of punishment by a judge personally involved and therefore not unreasonably to be deemed to be seeking retribution, however unconsciously, at a time when a hearing before a judge undisturbed by any personal relation is equally convenient. It does not enhance a belief that punishment is a vindication of impersonal law; it does not fortify the deterrent function of punishment.
83
Had the judge here found the petitioners guilty of contempt during the actual course of the trial a different problem would be presented. Even then, however, only compelling circumstances would justify a peremptory judgment of contempt. For while 'Courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect and decorum in their presence,' the power that may thus be exercised is 'the least possible power adequate to the end proposed.' Anderson v. Dunn, 6 Wheat. 204, 227, 231, 5 L.Ed. 242. Resort by a judge to criminal sanctions without the usual safeguards in imposing punishment is to be supported only if the moral authority of a trial judge cannot command order and respect, only if a firm reprimand calculated to secure obedience would not halt an incipient course of misconduct.
84
Criminal justice is concerned with the pathology of the body politic. In administering the criminal law, judges wield the most awesome surgical instruments of society. A criminal trial, it has been well said, should have the atmosphere of the operating room. The presiding judge determines the atmosphere. He is not an umpire who enforces the rules of a game, or merely a moderator between contestants. If he is adequate to his functions, the moral authority which he radiates will impose the indispensable standards of dignity and austerity upon all those who participate in a criminal trial.
85
Truth compels the observation, painful as it is to make it, that the fifteen volumes of oral testimony in the principal trial record numerous episodes involving the judge and defense counsel that are more suggestive of an undisciplined debating society than of the hush and solemnity of a court of justice. Too often counsel were encouraged to vie with the court in dialectic, in repartee and banter, in talk so copious as inevitably to arrest the momentum of the trial and to weaken the restraints of respect that a judge should engender in lawyers. Counsel were not made to understand that in a criminal case not merely the liberty of individuals is at stake. Law itself is on trial as the 'stern daughter of the voice of God.' Throughout the proceedings, even after the trial judge had indicated that he thought defense counsel were in conspiracy against him and were seeking thereby to subvert the trial, he failed to exercise the moral authority of a court possessed of a great tradition. He indulged them, sometimes resignedly, sometimes playfully, in lengthy speeches. These incontinent wrangles between court and counsel were punctuated by occasional minatory intimations from the Bench. As in the case of parental warnings to children, feckless repetition deprived them of authority.
86
To call counsel officers of the court is no idle phrase. Our whole conception of justice according to law, especially criminal justice, implies an educated, responsible, and independent Bar. Counsel are not freed from responsibility for counduct appropriate to their functions no matter what the encouragements and provocations. Petitiones must be held to strict accountability for the contempts they committed. But until the inherent authority that should radiate from the Bench is found ineffective in securing seemly conduct by counsel, there is no need for drastic peremptory procedure in bringing contemnors to book even during a trial. History records too many abuses to look indulgently upon the exercise of such arbitrary power. And when the trial in fact goes to completion, as here, without invoking summary convictions, that in itself proves that there was no occasion for departure from the historic method of trying criminal charges, that is, after notice and an opportunity for defense before a disinterested judge.
87
It only remains to point out the differences between this case and two other cases now before this Court on petitions for certiorari. (As to the desirable disposition of these petitions no view is intended to be indicated.) In Hallinan v. United States, 182 F.2d 880, and MacInnis v. United States, 191 F.2d 157, 159, the Court of Appeals for the Ninth Circuit affirmed convictions for contempt committed by two lawyers in a trial in the Northern District of California which lasted some twenty weeks, from November 14, 1949, to April 4, 1950. The contempt charge in the Hallinan case was for conduct which occurred during Thursday, Friday and Monday of the first two weeks of the long trial and consisted in disobedience of the court's order to limit the opening statement and the cross-examination of Government witness. The complained-of conduct did not at all bring the judge personally into controversy. On Tuesday morning after the time necessary for preparation of the contempt certificate the judge found Hallinan in contempt and sentenced him to six months' imprisonment. On the face of the record it would require even more than the boldness of hindsight to say that the trial judge could not have reasonably believed that immediate vindication of the disobedience of the court's order was necessary to secure respect for his authority during the remainder of the trial.
88
Later, on February 1, 1950, the other defense attorney MacInnis—thus addressed the court after one of its rulings: 'I think you should cite yourself for misconduct. * * * I have never heard anything like that. You ought to be ashamed of yourself.' Soon after this remark the court recessed until the next day. After overnight consideration, the judge informed the lawyer that his remark constituted contempt and that a certificate of contempt in accordance with Rule 42 would be filed. Here again, the judge took prompt action in order, as he concluded, to assure the orderly continuance of a trial which still had many weeks to go.
89
The Hallinan and MacInnis cases disprove the Government's claim that prompt citation for contempt, if the circumstances warranted it, would have caused delay and disruption in the New York trial. In the California case Hallinan remained as defense counsel by virtue of a stay in the execution of his sentence; and MacInnis, by a postponement of his sentence until after the verdict in the principal case. MacInnis evidently abstained from further misconduct in the principal trial because of the certainty of punishment, though he did not know its magnitude. Either device was available to the trial judge in New York had he felt that only by a prompt judgment of contempt could he keep control of the proceedings. In fact he did keep order by measures short of those used in the California case. At the end of the trial the only question was whether he or another judge, not personally involved, should pass on issues of contempt that had arisen during a trial that had ended, and impose punishment if guilt was found.
90
It is suggested, however, that a judge should be allowed to punish contempt peremptorily, as did the judge here, long after the contempt occurs. Otherwise he might be impelled, so it is surprisingly argued, to act on the inflamed impulse of the moment for fear of losing the opportunity to punish the offender himself. The Hallinan and MacInnis cases suggest the answer: power to cite for contempt summarily is not lost by taking a reasonable, brief time for judicious consideration whether such drastic action is necessary in a pending trial. Moreover, the guides to right conduct which Mr. Chief Justice Taft laid down in the Cooke case and on which I rely, rest on the assumption that federal judges are not undisciplined creatures whose feelings are their masters. Presumably they are responsible beings with cool heads. In any event, this Court sits to correct a rare occurrence of irresponsible action. Finally, the Government urges that a hearing before a different judge would give petitioners another opportunity for harassing tactics, and that to subject the trial judge to cross-examination and refutation by witnesses drawn from courtroom spectators would embroil the federal judiciary in damaging controversy. Once more the Government depreciates the status of federal judges. It derogates from the high conception which one should have of them not to attribute to the judge who would preside in the contempt hearing those capabilities by which federal judges, especially in nonjury cases, conduct proceedings in an effective, expeditious and dignified manner, with appropriate control over the scope of cross-examination and the offer of witnesses.
91
Public respect for the federal judiciary is best enhanced by exacting high standards of judicial competence in the conduct of proceedings and by discouraging an assertion of power which is not restricted by the usual demands of Due Process and which too often manifests a failure of moral mastery.
APPENDIX.1
92
Excerpts from the Record of the Principal Case, Dennis v. United States.
93
The Court: Well, if you think I am going to conduct an inquiry as to the reasons why everybody is in each one of the seats here you are making a big mistake, because I am not going to do that. There are lots of people here who came for reasons that are sufficient for themselves.
94
Mr. Gladstein: I understand, but your Honor will certainly permit me to call your Honor's attention at least to the facts that I want to complain about, even though I am told that your Honor is not going to do anything about it. And you will permit me, will you not, your Honor—
95
The Court: You know, Mr. Gladstein, I don't like that crack. I don't know who told you that I am not going to do anything about this or that. (Pp. 72—73; Jan. 17, 1949.)
96
Mr. Gladstein: I think Mr. Sacher was referring to the question of the hours that you want to sit today, the time. That is why he asked. I was getting a little hungry myself. And you look a little peaked I think.
97
The Court: If I felt any stronger than I do right now I would be sick. So don't worry about my looking peaked, I feel all right. (P. 88.)
98
Mr. Gladstein: * * * Standing behind me here are two men who are attaches of this court, they are bailiffs.
99
The Court: But they are always there, at every criminal trial.
100
Mr. Gladstein: Your Honor, you haven't heard me yet. I have no objection, precisely.
101
The Court: If I seem impatient to you I am sure it is a very misleading impression.
102
Mr. Gladstein: I will accept that, your Honor, with what I think you intended to convey. (Pp. 146—147.)
103
The Court: * * * I think you have squeezed all the juice out of that particular orange.
104
Now, why don't you get on to the merits of your claim that the judges here should not try this issue.
105
Mr. Gladstein: If you would permit me, your Honor, to carry forward a little bit the allusion that you have just made, which happens to be closely identified with the State from which I come, from which the citrus fruits are a product—
106
The Court: No Californian ever misses the chance. (Pp. 207 208.)
107
The Court: If you mean that as applicable to me, I say I don't know anything about it. I don't. I haven't the remotest idea how these juries are got together. I have only been on the bench here as you know a short time.
108
Mr. Gladstein: How long has it been, your Honor?
109
The Court: Well, July 1st, 1947, was the great day, as I remember it.
110
Mr. Gladstein: Well, that is over a year and a half. (P. 212.)
111
Mr. Gladstein: But what happened about ten years ago was that it was decided to throw that system into the ashcan, so to speak, and to substitute for it a system which is the opposite of democratic, fair, truly representative; and this is what took place, as our affidavits show: instead—well, first of all—
112
The Court: Now all this time I am thinking, where is the bias? Where is the prejudice? What kind of a judge must you have specially? I am think(ing) about that, and doubtless you have got it in mind.
113
Mr. Gladstein: I certainly have, your Honor.
114
The Court: Don't creep up on it too suddenly. (Pp. 238—239.)
115
Mr. Gladstein: * * * You as a practicing attorney stood before the Supreme Court of the United States and spoke about the necessity of having a democratic jury system in the State of New York.
116
The Court: And as I understand it the fact that I then fought for a democratic jury system shows now that my mind is so biased that I am not fit to sit here and hear your case? That seems a little inconsistent to me.
117
Mr. Gladstein: If your Honor please, please don't distort the meaning of what I say, because what I am saying is: the fact that 18 months ago or thereabouts your Honor stood before the Supreme Court demanding that it condemn an illegal, vicious kind of jury system in the State courts, plus the fact that for 18 months your Honor has sat on this bench in the Federal courts and has seen in operation a system which to the naked eye reveals the kind of discrimination and exclusions that have been taking place and your Honor has done nothing about it. (P. 242.)
118
The Court: Mr. Dennis has a little suggestion for you there that Mr. Sacher is looking at. I think he means to give it to you.
119
Mr. Sacher: No. This is a private communication. Thank you.
120
The Court: I had no idea of desiring to see it, Mr. Sacher.
121
Mr. Sacher: Oh, I understand that.
122
The Court: I thought he intended it for Mr. Gladstein and I attempted to do what I thought was a courteous thing in calling his attention to it.
123
Now, please, don't try to misunderstand things like that. You may assume that when I say things I say them in good faith. I have no desire to do otherwise, and I think you gentlemen will do better to recognize that.
124
Mr. Sacher: I don't like to get the feeling that the clients are under the surveillance of the Court.
125
The Court: Well, all right. I am sorry that you take it that way. (P. 244.)
126
Mr. Gladstein: The key to the difference between what you have just said, your Honor, and what I am contending is a little magic phrase consisting of four words that you slipped into that last statement. I think it was 'regardless of the justification'—
127
The Court: I don't think you ought to say 'slipped in' now. I gather you meant that colloquial expression in a nice way.
128
Mr. Gladstein: Oh yes. Everything I say to the Court is always meant in a nice way, your Honor.
The Court: I know. (P. 247.)
129
Mr. Sacher: * * * I heard your Honor say a few minutes ago that the witness did not look like a banker.
130
The Court: No, I said he did not look like a mechanic.
131
Mr. Sacher: Oh, I beg your pardon. All right.
132
Now, the point I want to get at is this, that what the decisions of the Supreme Court are concerned with are not the appearances, for I have seen many workers and mechanics who look a darn sight more handsome and more personable and pleasant than a lot of fat bankers.
133
The Court: Well, we won't go into the question of how good-looking everybody is. We might not come out so well on that.
Mr. Sacher: That may be. (P. 383.)
134
(Conduct involved in Specification II2—pp. 384—385; Jan. 21, 1949.)
135
Mr. Sacher: Well, I don't think you would have called him if you had anything to do with the trial. You were too good a lawyer to do any such thing.
136
The Court: Well, it is quite flattering to have you keep talking about me as a lawyer, and I am glad to hear your comments on the subject as long as they are favorable. And if not I will preserve my equanimity in any event. (P. 399.)
137
The Court: You can reopen the matter of consideration when I hear from Mr. Isserman who doubtless is about to add something of importance in just a moment.
138
Mr. Isserman: I object to your Honor's remark. I think it is sarcastic. It doesn't show the respect that this Court should show to counsel. I object to it.
139
The Court: Well, I intended no disrespect to counsel. I will listen to what you have to say.
140
Mr. Isserman: I once more object to your Honor's ruling on matters affecting the clients I represent in this proceeding before hearing my position in respect to those matters. (P. 404.)
141
Mr. McCabe: * * * Just take, for instance, an employee of the McGraw-Hill Company. The fact that he got a salary somewhat less than $5,000 I do not think would put him in the class of those whose economic outlook or whose economic philosophy would be at variance with that expressed by that of his employer. An employee of the National Association of Manufacturers might very well be drawing a salary which would, under the arbitrary rule which we are just toying with here—I don't say we are setting it up arbitrarily, but we have tried to come around—
142
The Court: You are certainly toying with it all right.
143
Mr. McCabe: Well, maybe it will be like my grandchile—when she toys with toys there isn't much left of the toys after about ten minutes.
144
The Court: Well, I seem to be surviving all right. (Pp. 428 429.)
145
The Court: * * * After all this (is) not the trial in chief. This is the preliminary challenge, and the situation is a little bit different. I suppose I should take it under advisement. I do not want to act hastily about it. I must say that my study of this record in this interval has indicated to me, has for the first time put in my mind the thought of a series of concerted and deliberate moves to delay the case. I am exceedingly reluctant to take the view that any lawyer would do that, and even press by this occurrence this morning—
146
Mr. Sacher: I would like to deny that we have ever done it or that we are doing it now, your Honor.
147
The Court: I have put that thought from my mind for the present, but I will say that it is a rather difficult situation that has been brought up here by the conduct of counsel. (P. 465.)
148
Mr. Crockett: * * * I think the Court is aware that my arguments are usually pretty short and to the point, though I must confess they have not been any too convincing to your Honor—
149
The Court: Yes, much better than Mr. Sacher and Mr. Isserman who have been—well, shall I say, prolix and vociferous and repetitious, but all in good taste, and I have listened, although I must say, as I said a few moments ago, that the thought has finally entered my mind that all this business that has been going on is just a series of wilful and deliberate maneuvers for delay.
150
Mr. Sacher: I resent that and I want to deny it once again. (Pp. 467—468.) Mr. McCabe: Your Honor told us to saw wood the other day.
151
The Court: Yes.
152
Mr. McCabe: And it seems to me that the sawdust is getting in somebody's eye. We are sawing wood a little bit too rapidly.
153
The Court: If you mean by that that you have perhaps got me in an ill humor, you are entirely mistaken, because I feel very pleasant and genial, and I have no desire or no thought of feeling disturbed at all; so if you meant by your comment that my attitude was perhaps changed or different, I think you are mistaken.
154
Mr. McCabe: I did not infer that at all, your Honor.
155
The Court: What did you mean?
156
Mr. McCabe: What I said, that the sawdust was getting in somebody's eyes?
157
The Court: Yes. Whose eyes were you talking about?
158
Mr. McCabe: I say the eyes of anybody who is interested in defending a system of selection of jurors which is as we claim it to be. I will say this, your Honor—
159
The Court: But you did not mean my eyes, I take it, did you? You could either say yes or no. Now which is it?
160
Mr. McCabe: Well, when sawdust starts flying around I guess it gets in everybody's eyes.
161
The Court: So you didn't mean me?
162
Mr. McCabe: No, I will say I did not. I will say this: Your Honor, if I walked into this courtroom and told you that the legs of that chair you are sitting on were cracked and were about to fall, or if I said that this wall had a big crack in it, and that the whole system looked bad—
163
The Court: It wouldn't scare me.
164
Mr. McCabe (Continuing): If I said to your Honor that perhaps there were other serious things wrong with this courtroom, just the physical aspects of the courtroom, I think that I am not far off in assuming that your Honor would cause the fullest investigation to be made to see that the physical safety, not of yourself—
165
The Court: That is where you are making a big, 100 per cent mistake. It would roll off my back like water off a duck, and I would not even look at the legs of the chair. (Pp. 573—574.)
166
Mr. McCabe: That is not regulating the order of proof, your Honor, when just as it looks, as everybody realizes, that the initial proof absolutely supports our assertion then suddenly we are cut off and shunted on to some other way; that our orderly procedure and expeditious procedure in proving our case is suddenly disrupted by your Honor's ruling. I say it certainly indicates some fear on your Honor's part.
167
The Court: Well, I have no fear. If you have any impression that I am afraid you may put that out of your mind entirely, because I have not felt any fear, and I can only remember once in my life that I was afraid, and I am not accustomed to be afraid, and I am not afraid now. So you can just drop that subject. If you want to know what that one time was that I was afraid, I will tell you sometime.
168
Mr. McCabe: Your Honor picks up the word 'fear.' I would like to get back to the word 'bias,' then. (P. 582.)
169
The Court: You have a curious way of expressing yourself, to say the least.
170
Mr. Sacher: Perhaps that may be so, your Honor, but unfortunately I can express myself in no other way. And I would like, if your Honor would be kind enough to indulge me to refrain from personalities so that I may develop what I regard as a most important argument on this question,—
171
The Court: You ask me to refrain from personalities?
172
Mr. Sacher: I think so. You have just accused me—
173
The Court: For what purpose? I indulged in no personalities.
174
Mr. Sacher: You said I have a curious way of expressing myself.
175
The Court: Yes. You said the United States Attorney had confessed his guilt. I considered that—
176
Mr. Sacher: I did not use those words. I said he made a confession of guilt and I stand by that statement.
177
The Court: Well, that is no personality. That is a comment on a sort of argument that I think is out of place and not helpful.
Mr. Sacher: All right. (P. 607.)
178
The Court: * * * But you have made so many challenges of bias and prejudice and said that every time I ruled against you there is something about it that is abnormal, so I have been disposed to let you go on. But I think the record has indicated an amount of repetition that is utterly unprecedented.
179
Mr. McCabe: Your Honor, when the demonstration of the bias is repeated the objections to it must (by) necessity be repeated.
180
The Court: Well, you may, as I said before, you may challenge my bias and prejudice just as often as you think you should.
181
Mr. McCabe: We shall, your Honor.
182
The Court: I take no unbrage at that. But I should think that you had covered that ground pretty well. (Pp. 612—613.)
183
The Court: Well, so many things have happened that seem, as I read back over that record, hardly consistent with anything other than a concerted and deliberate and wilful effort to delay. But I have told you that the thought merely occurred to me and I have put it out of my mind for the present. I wouldn't want to have something come along later and have anyone fail to understand that there is this interpretation of what has been going on. I do not say it is the right interpretation; it may well not be. And all I do say is that the thought for the first time came into my mind and I put it out.
184
So we adjourn now until tomorrow morning at 10.30.
185
Mr. Sacher: I want to state on the record, however, that I deny what your Honor said.
186
The Court: You don't need to shout, Mr. Sacher.
187
Mr. Sacher: No. I resent—
188
The Court: It is possible to address the Court occasionally without shouting.
189
Mr. Sacher: Yes. Your Honor in a quiet manner is picking out a point which will result in certain headlines tomorrow morning. For the record I want to make it clear that I have done nothing and will never do anything to delay or hinder the progress of this case. And whatever I or any other counsel in this case have done or has done has been directed solely to the achievement of the end of proving that this jury system is bad.
190
And I think, your Honor, that there is no justification for closing every day's session with the observation as to what thought was entering your Honor's mind concerning our state of mind. (P. 623.) The Court: Now a little incident occurred this morning about which I will have no mystery. Due to the numerous communications of one kind or another that have been arriving up at my home my wife came down here this morning. I suppose I should have told her not to, and it is my fault, but she did. And, then, there was a little disturbance here due to a woman who saw the empty seats over on the side where the press have their location and she felt she was entitled to go there and made a little, slight disturbance with the bailiffs. And so my wife sent this note to the police which reads, 'Tell Detective Mitchell to guard the Judge at lunch hour.' And as the messenger proceeded with the note one of the alert reporters was able to get a hold of the note, and so the rumors started around the building, and goodness knows where else they have gone.
191
As to the woman who desired to sit on the other side where the empty seats are, I noticed the matter and I sent a little communication of my own to the bailiffs to tell them to leave her alone. I thought she was right. I saw her during the recess hour in my chambers, and I told her that I thought she was right, and that while those members of the press were not occupying the empty seats perhaps it was only reasonable to have the last row at least made available to those who were waiting to get in.
192
Now, that is all there is to it. There is no mystery. There is no danger. I haven't felt the slightest concern about the communications I have been receiving. And there it is.
193
I have no notion that any of those communications have been inspired by the defendants or by any of their counsel. I do not feel that I am in any personal danger at all. But if I am wrong, I shall face the risk calmly and I shall do my duty.
194
Now I think perhaps it is apparent to everyone that the character of the accusations that have been made against me here from day to day and the extravagant charges that have not only been made once or twice but repeatedly and emotionally and loudly may well cause some misguided and poor people or others to get a wrong impression of the administration of justice and of what I am doing. I have no great opinion of myself as an individual. I do have great respect for the office which I hold. I represent here not the rich, not the poor, but all the people and the majesty of the Government of the United States. And I am cognizant of that and I am trying to do the best I can, to be just and to be fair according to my lights. I may make mistakes, I suppose I often do, but I can only do my best.
195
You may proceed with the trial.
196
Mr. Sacher: If the Court please, I think we too, both the defendants and defendants' counsel, have received a series of letters with threats of violence against ourselves, our wives and our children. Indeed, when I returned to my home at one o'clock this morning my wife greeted me, not with a note to a detective, but with several letters.
197
I might in passing say that your Honor may have received crank notes. I am sure that they were not inspired by anything we said or did. And in that connection I may say that so far as the defendants are concerned they have received much more than crank notes. You will recall that in one of the arguments I pointed out—
198
The Court: I am glad you can tell the difference—
199
Mr. Sacher: Will your Honor—
200
The Court: I am glad you can tell the difference between a crank note and others. But I am not disposed to have argument about everything.
201
Mr. Sacher: I know, your Honor.
202
The Court: May we not even pass this incident without extended discussion? (Pp. 664—665.)
203
Mr. Sacher: Mr. Gladstein, now we can't hear you.
204
The Court: Now (that (sic) is a strange accusation, Mr. Gladstein, because your voice is very penetrating and pleasant.
205
Mr. Sacher: Why, your Honor, I must say, however, that I did not hear Mr. Gladstein. He was speaking so softly.
206
The Court: I don't doubt it. That is all right.
207
Mr. Gladstein: Perhaps the newspapers should take note. They have been saying that I am very loud and brash, and so forth, but it does not really matter to me personally, your Honor.
208
The Court: No, we must not worry about what the newspapers say about it.
209
Mr. Gladstein: There would be very little to entertain us if we took too seriously what some of them say.
210
The Court: You know, I have often felt, as I have often expressed myself here, that it is better not to be stuffy. I try not to be.
Mr. Gladstein: All right. (P. 667.)
211
The Court: Now, Mr. Gladstein, I know all about leading questions, and when the Court in his discretion will allow them, and when he won't. Now you go ahead and lead him as little as necessary.
212
Mr. Gladstein: I don't have to lead him at all, and I won't, your Honor.
213
The Court: That is all right. It is just not to get into an unnecessary argument about it. Because I know plenty about leading questions. I have probably tried a few of them myself in my day. (P. 714.)
214
Mr. Sacher: * * * we shall ask for and insist upon the time necessary to explore those records in order—
215
The Court: I wish you would not use that expression 'insist upon.'
216
Mr. Sacher: That means urging, that is all.
217
The Court: You know, you use it all the time.
218
Mr. Sacher: I don't do it all the time. I think the record should indicate that 'all the time' to your Honor in this instance means once.
219
The Court: Perhaps when I used the expression 'all the time' I used it in a rhetorical sense. But, anyway, I would like to have you understand that you will insist upon nothing.
220
Mr. Sacher: Well, we will urge that.
221
The Court: I will rule what is to be done. (P. 884.)
222
Mr. Sacher: I have just one observation to make, your Honor, concerning delay. While speed is a very commendable objective, I think justice is a greater one, and that if it be—
223
The Court: Well, it is nice to have you remind me of that.
224
Mr. Sacher: What is that, your Honor?
225
The Court: I say, it is nice to have you remind me of that. (P. 885.) Mr. Gladstein: * * * Now it seems to me very plain that Mr. McGohey is here toying with possibilities. This witness or other witnesses—
226
The Court: Well, he has got some competition in that.
227
Mr. Gladstein: Well, we are not going to let him toy. We are very serious about this.
228
The Court: Oh, well, I know.
229
Mr. Gladstein: We are quite serious.
230
The Court: You take over the courtroom any time, but I am here running the court, so don't say, as you and Mr. Sacher are apt to do: you insist on this and we are going to do this. You are going to do what I tell you to.
231
Mr. Gladstein: Well, I am going to remain serious, regardless of what you Honor tells me.
The Court: That is right. (Pp. 931—932.)
232
(Conduct involved in Specification III—pp. 933—934; Feb 2, 1949.)
233
(Conduct involved in Specification IV—pp. 1034—1038; Feb. 3, 1949.)
234
Mr. Gladstein: * * * Now, although everybody, one would think, who did not prejudge the matter here—
235
The Court: Well I deny the motion to disqualify me.
236
Mr. Gladstein: Well, you were anticipating. I wasn't going to make one.
237
The Court: I am very quick to catch on, and I thought when you said 'anybody who does not prejudge,' it was just another way of telling me again what you have told me so many times, and your colleagues have told me so many times: that I have prejudged it all; that I am biased and prejudiced and unfit to sit here. Now, I am familiar with that, and if you think you are going to get me excited saying that over again, you are making a big mistake.
238
Mr. Gladstein: I wasn't going to say it over again, and if I were it would not be for the purpose of getting you excited. It is true I have a definite mind on the question of whether legally you are disqualified, whether you are biased, but I wasn't going to express it.
239
The Court: They went all the way up to the United States Supreme Court with it, and I suppose if there was any further you could go, you would do that.
240
Mr. Gladstein: They didn't pass on your Honor's bias. They did not say you were unbiased—
241
The Court: They denied the application for certiorari.
242
Mr. Gladstein: Yes, they refused to hear the question of whether or not you were biased, that is true, but that does not mean, your Honor, that they passed favorably on the contention of the Court. It does not mean, of course, that they held that you were biased, but neither does it mean that they held you were unbiased.
243
The Court: Well, you don't really need to keep rubbing it in and telling me every day that I am prejudiced, biased, corrupt, and all that sort of thing, because after a man has been called names a certain number of times they have no effect on him any more. (Pp. 1034—1035.)
244
(Conduct involved in Specification V—pp. 1049—1059; Feb. 3, 1949.)
245
(Conduct involved in Specification VI—pp. 1085—1092; Feb. 4, 1949.)
246
The Court: Well, you see, you and your colleagues have apparently adopted a new technique in criminal cases by which instead of the defendants who are indicted being tried, the Court and all the members of the court are the ones who must suffer the excoriations and accusations of counsel. But I think, perhaps, with patience there will be an end. So you will please let the matter drop there, and Mr. Isserman will proceed with his questions.
247
Mr. Isserman: I will proceed, your Honor, but I am again constrained on behalf of my clients to object to your Honor's remark characterizing the questioning which I am indulging in, or suggesting that the questioning is a stalling and delaying tactics, and to the description of this challenge to a jury, which under the law we have a right to make on behalf of our clients, as a new technique—(Pp. 1090—1091.)
248
The Court: Well, perhaps we had better let each one of the counsel for the defendants say a word or two now, because they look as though they desire to state their positions too.
249
Mr. McCabe, would you like to say something?
250
Mr. McCabe: I had not intended to say anything, your Honor, but as long as your Honor invites it I would like to express a thought that has been going through my mind for several days: (P. 1091.)
251
The Court: It might be prejudice, I suppose?
252
Mr. McCabe: No, it has become clear to me that your Honor is doing the very same thing. Your Honor by constantly referring to our tactics as delaying tactics; by referring to evidence which seems to me to be very clear and precise, as being confusing, and referring to gaps in the testimony—I think that your Honor seems to have in his mind doing the very thing which you, I think unjustly, indicated that we might be doing. It seems to me that your Honor's words, that constant repetition of our new techniques and delaying tactics, and dragging things out and rambling on, that that is addressed—
253
The Court: Well, maybe I do ramble a little now and then, but I think that may be the privilege of the Court. (P. 1092.)
254
(Conduct involved in Specification VII—pp. 1134—1141; Feb. 4, 1949.)
255
Mr. Gladstein: Thank you, your Honor.
256
I have just pulled out a random—something that the clerk in this court does not do when he picks jurors—two—
257
Mr. McGohey: I move to strike that, your Honor.
258
The Court: I did not even hear that part. I hope it wasn't anything good. (P. 1569.)
259
Mr. Isserman: I am sorry, I object to your Honor's remark again. It is wholly uncalled for.
260
The Court: You may do all the objecting you want, but I am running this court and we are not going to have this interminable delay. (P. 1574.)
261
(Conduct involved in Specification VIII—pp. 1660—1671; Feb. 14, 1949.)
262
The Court: Mr. Sacher, you are becoming positively insolent.
263
Mr. Sacher: Well, I am not. I am stating— The Court: Now I won't have it.
264
Mr. Sacher: I am stating what your Honor seems—
265
The Court: You have charged me with about everything that a lawyer can charge a court—
266
Mr. Sacher: I am making no charge—
267
The Court: You are charging me by this innuendo of some sort of connivance with the United States Attorney, and I just will not have any more of that. (P. 1661.)
268
The Court: Mr. Gladstein, I hope I am misunderstanding the purpose of that comment. It does not seem to me that you needed to do it. It seemed to have just one of those little fishhooks in that you so often sprinkle in your conversation, and I suggest that you omit them, if possible.
269
Now, you have been allowed every reasonable latitude here, and it is my intention to give you every reasonable latitude to bring out whatever you want to bring out—
270
Mr. Gladstein: Very well.
271
The Court (Continuing): But I cannot continue to do it indefinitely, and if I get the impression that sarcastic comments and criticisms of the Court by innuendoes are being dropped in here and there, it is perhaps going to affect my discretion somewhat in the rulings I make on the extent of your cross-examination. (Pp. 1813—1814.)
272
The Court: Do you wish to make a motion that I disqualify myself for prejudice, as you have already made?
273
Mr. Crockett: I want to reserve the right to make such a motion, your Honor.
274
The Court: You have made it, I suppose, you and your colleagues, I don't know how many times, and I think we all understand that you charge I am biased and prejudiced and corrupt and everything else. (P. 2094.)
275
(Conduct involved in Specification IX—p. 2097; Feb. 18, 1949.)
276
The Court: Of course, you abandoned all thought of that, you and your colleagues, long ago here because you charged me again and again with corruption, bias, prejudice and having something to do with the system that I had nothing to do with. So I understand thoroughly what you think about me. Now, I can't help that. I must do my duty as best I can. So if you want to go on and call me some more names, go ahead and do it. It may come within part of your duty as you see it, and certainly it would be relevant to the case, and I am not going to stop you, so go right ahead and call me anything you want. (P. 2098.)
277
Mr. Gladstein: * * * That the Court is not concerned with the consumption of time is evident from the fact that during the past 35 or 40 or 45 minutes, perhaps longer, as each of the four attorneys who preceded me attempted to present his statement of objections, the Court constantly and frequently interrupted for the purpose of—
278
The Court: If you expect I am going to sit here like a bump on a log while they make statements that are absolutely not so, I can tell you now I won't do it.
279
Mr. Gladstein: I desire—
280
The Court: There is no rule I ever heard of that a judge is supposed to sit silent while the attorneys flay him.
281
Mr. Gladstein: I desire to make an orderly, logical presentation of what I have to say,—
The Court: Go ahead and do it. (P. 2099.)
282
Mr. Gladstein: Your Honor, I would like to finish my statement for the record. I wish the record to show my objection to the tone and the manner in which the Court delivered that command as unbecoming a Court, and I object to it. I also—
283
The Court: There is nothing unbecoming about it. I am through being fooled with in this case.
284
Mr. Gladstein: Now, if your Honor please—
285
The Court: If you don't like it you can lump it. Put that down.
286
Mr. Isserman: I object to your Honor's remark and characterization of the conduct of counsel, and I ask that your Honor strike that remark.
287
The Court: Oh yes, yes, I have heard all that. Now I am sick of it.
288
Mr. Gladstein: Now I wish to add to my objection the unseemly remark of the Court saying that if we do not like it we could lump it. I object to it and ask the Court to withdraw and strike that statement from the record.
289
The Court: Yes, I refuse—I deny the motion. (Pp. 2276—2277.)
290
(Conduct involved in Specification X—pp. 2383—2385; Feb. 28, 1949.)
291
(Conduct involved in Specification XI—p. 2404; Feb. 28, 1949.)
292
Mr. McGohey: Well, it is a dishonest question, your Honor, and that is the basis of the objection to it.
293
The Court: It is in Mr. Gladstein's best style. (P. 2490.)
294
(Conduct involved in Specification XII—pp. 2528—2529; March 1, 1949.)
295
Mr. Gladstein: * * * I desire the right, and I request the Court to grant it, for us to have an inventory made of the contents of those envelopes before they are taken from us permanently. We will also ask leave at times, suitable to the Court, to make copies of those—
296
The Court: Do you realize, Mr. Gladstein, you are insinuating that I have possession of those exhibits and will destroy some of them?
297
Mr. Gladstein: I make no such insinuation. (P. 2556.)
298
Mr. Sacher: * * * There is really nothing funny about this.
299
The Court: I was just thinking it was only a little while ago you were talking about Judge Knox's book in a rather different way. But you can do that. That is all right.
300
Mr. Sacher: But this is a statement of fact.
301
The Court: I am not going to stop smiling when I see some occasion to smile just because Mr. Sacher does not like it.
302
Mr. Sacher: It is not the smile. I welcome smiles. I indulge in them a good deal, but I don't think you ought to treat this argument with levity because I think it is an important question. (Pp. 2640—2641.)
303
The Court: * * * We will then, by the usual process of selecting names out of the wheel, put 12 jurors in the jury box, but the questions will be not only to them but to the others who may be sitting in the courtroom. Otherwise the repetition of the questions will be such as to utterly wear me out, or anyone else under the circumstances, and be utterly unnecessary. (P. 2665.)
304
The Court: Well you know, it seems so easy for the Court to send a letter. My pre-occupations now are such that I simply could not do it. It is hard for people to realize the burden that I have been carrying here and the many details of one kind or another that I have to take care of, and I don't think it would be proper for me to do it anyway, but the main question is whether there would be some special hardship to you. (P. 2707.)
305
Mr. McCabe: I just want to give you the citation. It is Farnsworth v. Sanford in 115 F.2d 375.
306
The Court: Thank you. Let me glance at this, but I can tell you all that I am not going to dash off any determination on some question of law by glancing at a case or two on the spur of the moment. I don't like to see judges do that and I don't do it myself. I have tried here to give every question that comes up careful consideration, and that has been one of the things that has been wearing me out here because I have been getting propositions of law in rather close proximity to one another. (P. 3121.)
307
Mr. Sacher: It is very strange that on the occasions when you scratched your head and pulled your ear, we were speaking and not Mr. McGohey.
308
The Court: Maybe you were not watching me.
309
Mr. Sacher: I just want to say that your conduct at all times you see, you are doing it again.
310
The Court: I know, you are going to say I am corrupt and I am disqualified. You called me all those things before. Now you can run the catalogue again and I will listen patiently. Make it just as bad as you can.
311
Mr. Sacher: Your Honor, I am certainly aware of the fact that if I bear false witness against your Honor in anything I have said that I am subject to disciplinary measures and I am not inviting disciplinary measures by making false statements.
312
The Court: You mean that I will take disciplinary measures against you because you said I scratched my head? Don't be absurd, Mr. Sacher. Don't be absurd.
313
Mr. Sacher: The point I am making is that in every available means your Honor is conveying to the jury your lack of sympathy if not hostility to the defendants, their counsel's presentation of the case, and in these circumstances I want certainly to note on behalf of my clients a vigorous objection to your Honor's conduct and I wish to join Mr. Gladstein in the motion to declare a mistrial by the withdrawal of a juror.
314
The Court: Motion denied. (Pp. 3316—3317.)
315
Mr. Gladstein: * * * There is nothing unusual about that request and we make it, and we ask the Court to really give some consideration to it.
316
The Court: You know, that word 'really,' there, that is the way you do. You put that little sly insinuation in, as much as to say that heretofore I haven't really given the matter any consideration. (P. 3332.) Mr. Gladstein: I move that the remarks you have just made concerning the enjoyment—
317
The Court: I see them smiling, sneering and snickering there. The jury undoubtedly sees it as well.
318
Mr. Gladstein: Just a minute. If your Honor please, I assign those remarks as prejudicial misconduct on the part of the Court. I assign as misconduct your refusal to permit me to make an objection.
319
The Court: When did I refuse?
320
Mr. Gladstein: By your interrutpion at the present time and by pyramiding the misconduct which I am assigning. I ask the Court to instruct the jury—
321
The Court: You are now told that you may go ahead and make your remarks in extenso. (P. 3769.)
322
(Conduct involved in Specification XIII—pp. 3942—3943; April 4, 1949.)
323
Mr. Gladstein: Your Honor, I am allowed, am I not, to assign as misconduct remarks of the Court that, as a lawyer, I think constitute misconduct?
324
The Court: You may attack me all you want.
325
Mr. Gladstein: That is not what I said.
326
The Court: You may claim that I have been guilty of judicial misconduct of every name, nature and description, that is your right—and I shall take no offense at it.
327
Mr. Gladstein: I object to the Court's remarks and assign the Court's last remark as misconduct.
The Court: Very well. (P. 4028.)
328
(Conduct involved in Specification XIV—pp. 4058—4059; April 5, 1949.) (Conduct involved in Specification XIV—pp. 4058—4059; April 5, 1949.)
329
Mr. Crockett: I must object to that statement, your Honor, as suggesting to Mr. Gordon how he can get what he seems to be troubled about getting out of this witness.
330
The Court: Mr. Crockett, it is the function of the Court here to administer justice which I am trying to do to the best of my ability. Now you must know that such comment as you just made is not right.
331
Mr. Crockett: But I think the Court appreciates the fact—
332
The Court: Now I have been standing for all kinds of picking on me by the lawyers for the defense here and I am not going to raise any great issue about this one, but I really—I really think if it gets to a point where the Judge may not indicate what he thinks is the proper thing to do, it has reached a strange and pitiful state of affairs. (P. 4177.)
333
(Conduct involved in Specification XV—pp. 4228—4229; April 7, 1949.)
334
Mr. Gladstein: May I call your Honor's attention to the fact that because you just took umbrage at an objection which Mr. Isserman made as a lawyer—
335
The Court: I took no umbrage.
336
Mr. Gladstein:—you then reacted—
337
The Court: I suppose you begin—
338
Mr. Gladstein: May I finish, your Honor?
339
The Court:—to talk about my inflection of voice— Mr. Gladstein: No, I am not talking about your inflection.
340
The Court: But I am not taking any unbrage at all.
341
Mr. Gladstein: But, your Honor—
342
The Court: But I am not going to have a long-drawn-out discussion of something that is perfectly clear to me. (P. 4403.)
343
Mr. Gladstein: I assign your Honor's handling of my objection as misconduct.
344
The Court: I am getting used to these charges of misconduct. I don't think there has ever been a case where so many charges of misconduct have been made with so little foundation. (P. 4622.)
345
(Conduct involved in Specification XVI—pp. 4787—4788; April 19, 1949.)
346
Mr. Gladstein: I ask your Honor to strike that evidence, and I will also assign, as I did before, your Honor's statement as misconduct because it gives the impression that there is some possible relationship, which there cannot be, between this kind of statement and the charges in the case.
347
The Court: How can I rule that the evidence is inadmissible without necessarily giving the inference that it has a bearing on the case. And every time a Judge rules that way, the doctrine that you gentlemen have developed here is that that is judicial misconduct. Now I can't stop lawyers from calling me names and saying I am guilty of judicial misconduct and that I am prejudiced, and this, that and the other thing, and you can keep that up until the cows come home; that is all right, and I take no umbrage at it. (P. 4799.)
348
The Court: Why all of the defendants are smiling broadly.
349
Defendant Gates: Why certainly we are.
350
Defendant Potash: Certainly we are.
351
The Court: We are getting back to that country club atmosphere again. Well, there isn't going to be any country club atmosphere in my court.
352
Mr. Gladstein: When a man hears something that is ludicrous and absurd to the extreme I suppose he is permitted the human reaction of a smile of contempt.
353
The Court: That to me is in the same line as some of the comments we have had in the past. It may seem very funny to the defendants. They seem to enjoy it, but I don't think it is, and their laughing is not going to have any effect. (P. 4805.)
354
Mr. Gladstein: That is what we get. Your Honor asked why people are smiling, but there is an irony to it.
355
The Court: I had occasion to put a stop to some of that before. I am familiar with the practice in criminal cases of trying to laugh something off, and I am not going to have anything but order in my court. When the defendants get hilarious and start laughing and smiling and that sort of thing it is going to be stopped. You can put that in your book. (Ibid.)
356
(Conduct involved in Specification XVII—p. 4807; April 22, 1949.) (Conduct involved in Specification XVIII—pp. 4829—4834, 4860 4861; April 22, 1949.)
357
Mr. Isserman: If the Court please, I would like to ask the Court to take judicial notice of the fact that the man Haym Solomon is dead some several years. He was a figure in the American Revolution.
358
The Court: This is the first time I ever have become acquainted with the gentleman. I don't see what that has got to do with it. You Communists have a way of taking all kinds of names.
359
Mr. Sacher: I object to that remark and ask your Honor to strike that remark and to direct the jury to disregard it.
360
The Court: I will deny the motion.
361
Mr. Gladstein: I wish to say that the remark was intended to be derogatory to the defendants and it couldn't have been intended any other way. I object to it.
362
The Court: You have done a lot of—
363
Mr. Gladstein: I would like an objection rather than an invitation to engage in repartee.
364
The Court: What is the objection that you want me to rule on?
365
Mr. Gladstein: The objection is that your Honor made a remark which is inappropriate, improper for a Judge sitting in a trial to make because it was intended to convey some kind of slur against the defendants.
366
The Court: Well, you see it is the old story. Mr. Isserman gets up and has his say and if I remain quiet and let you spread eagle all over the place everything is fine. But the minute I say something it is judicial misconduct. I thought the statement I made was well borne out by the record, you have objected to it, and there it is. Now that's that. (Pp. 4956—4957.)
367
(Conduct involved in Specification XIX—pp. 4968—4970; April 25, 1949.)
368
Mr. Gladstein: Your Honor, may I correct one statement that I think the Court made inadvertently?
369
The Court: You may correct any statement that you made. I think you had better leave me alone for the time being. (P. 4970.)
370
The Court: Yes, I am now proceeding to read.
371
Mr. Crockett: I am very glad to notice that, your Honor.
372
The Court: What do you mean by that, Mr. Crockett?
373
Mr. Crockett: I take it you said it for my benefit. You looked directly at me and I wanted you to know that I had heard it.
374
The Court: Well, I did not look directly at you and I did not mean that for you but for all of the counsel for the defendants, who seem to be sedulously watching and clocking the time I use looking at papers and things of that kind.
375
Incidentally, I consider that an impertinence.
376
It may be assumed, when I am looking at papers, and I rule on them, that I read them, without having counsel make remarks of that character. (Pp. 5132—5133.) Mr. Gordon: Mr. Sacher thinks that this is very funny.
377
Mr. Sacher: I do.
378
The Court: He is a great fellow. There is no question he can give more indication of what he thinks about by tittering and laughing and giggling.
379
Mr. Sacher: I move that that be stricken on the ground it is utterly unwarranted and not founded on the record and solely as a diversion.
380
The Court: I take it that that is intended to be another imputation on my motives, Mr. Sacher. You are piling up quite a record for yourself in this case. (P. 5256.)
381
(Conduct involved in Specification XX—p. 5302; May 2, 1949.)
382
(Conduct involved in Specification XXI—p. 5526; May 4, 1949.)
383
Mr. Gladstein: The statement that your Honor made and the implication and innuendo that it carried.
384
The Court: I haven't the remotest idea what you are talking about.
385
Mr. Gladstein: I will be very happy to tell you.
386
The Court: Go ahead.
387
Mr. Gladstein: One of the attorneys rose to ask a question of the Court and your Honor distorted that question by asking another question, the purpose of which was to convey an implication that the question of the attorney was improper, that the attorney was indeed impliedly stating something that reflected on the Court's motives and the Court seized that opportunity to make that kind of innuendo.
388
The Court: Pretty ingenious.
389
Mr. Gladstein: It was; but not mine.
390
The Court: You are trying to throw some more imputations on my motives and showing what I thought in the first place was evidently not well justified. (P. 5700.)
391
Mr. Gladstein: Your Honor, my assignment of misconduct was at the remarks of the Court, and I therefore submit it was improper for the Court in making—in giving any instruction to the jury on that subject, to do so in the manner that your Honor just did, and I assign therefore your remarks as misconduct.
392
The Court: Well, I must be very bad, all these misconducts that you have charged, and I must say it is very sad. (P. 5794.)
393
The Court: No, you may not have them marked. They may be submitted at some later time if you desire, but I am not going to have them submitted now for publicity purposes.
394
Mr. Sacher: I object to that statement. These are not put in for publicity purposes. This is put in to protect the rights of the defendants. I think that is an improper remark.
395
The Court: That can all be done without having all this in the record now. That is my ruling for the present. Later they may be properly identified. I have had experience with a lot of prior things that surprised me.
396
Mr. Sacher: I object to that remark.
397
The Court: You may object your head off.
398
Mr. Sacher: I object to that one too. It is highly prejudicial to the interests of all the defendants and I think it is not observant of the due decorum of a courtroom to make these references, your Honor.
399
The Court: Yes, that is all right. (P. 6116.)
400
Mr. Sacher: I object to this, your Honor—
401
The Court: Overruled. Mr. Sacher, I will not hear from you further.
402
Mr. Sacher:—unless the time and place are fixed, your Honor.
403
The Court: Overruled. You needn't smile and sneer at me that way either.
404
Mr. Sacher: I wish to state that I did not sneer or smile.
405
The Court: I am not going to have any more of that than I can help, I will tell you that. (P. 6118.)
406
Defendant Dennis: Is your Honor trying to intimidate the defense and counsel for the defense?
407
The Court: I am afraid I am not very good at intimidation, but I have had a lot of it tried on me in this case. (P. 6130.)
408
(Conduct involved in Specification XXII—pp. 6262—6268; May 19, 1949.)
409
Defendant Dennis: Yes. I would like to present my point of view here.
410
The Court: When you begin talking about a mockery of justice and all that, you know, you cannot expect me to sit here like a bump on a log and hear you call me names without saying anything. I don't like to do that.
411
You go ahead now and call me some more names. (P. 6264.)
412
Mr. Gladstein: * * * And I would say that your Honor should consider in determining the application of the law that Mr. Crockett has cited to this question the statement that this Court made in the course of this trial on this very question. Unwittingly your Honor has perhaps made a singular contribution to jurisprudence.
413
The Court: Thank you for that 'unwittingly.' You really are something, Mr. Gladstein. (P. 6331.)
414
The Court: Mr. Sacher, I have been in a great many criminal cases. I have never been in one—and I have been in many that were very important, too—where so much time was taken by counsel on arguments on a motion to dismiss at the close of the Government's case—never one that even approximated the time taken here. Of course, if you would assume, as you gentlemen all appear to, that the Judge just sits as an automation and does not hear all this, or notice anything, or study the matter at all, or look up any law, and that then he comes to the close of the Government's case wholly uninformed as to the law and as to the facts, then perhaps further argument might be needed, but I have given this case the closest attention; I have studied it from early morning until late at night. I have studied every authority I could lay my hands on, and I feel that the amount of argument that I have permitted here has been more than adequate.
415
Mr. Sacher: May I say this to your Honor, that I think that your Honor's statements simply mean that advocacy no longer has a place in our courts.
416
The Court: Well, you have told me that, and Mr. Gladstein in his pleasant way has made it even more plain; but, of course, I know what is done in cases generally. When the Judge feels that he doesn't require any more argument he says so, and counsel ordinarily acquiesce. In this case, of course, it is different—
417
Mr. Sacher: I should like—
418
The Court: But I have to do the best I can to keep things going as well as I can, with making rulings that I deem proper ones, and I don't intend to be blackjacked by any form or method into doing anything that I don't think is right. (Pp. 6343—6344.)
419
(Conduct involved in Specification XXIII—pp. 6401—6402; May 24, 1949.)
420
(Conduct involved in Specification XXIV—pp. 6520—6522; May 25, 1949.)
421
(Conduct involved in Specification XXV—p. 6565; May 26, 1949.)
422
(Conduct involved in Specification XXVI—p. 6761; June 2, 1949.)
423
Mr. Sacher: May I point out, your Honor, that I have used the exact words of a question that you yourself put to the witness Budenz?
424
Mr. Gladstein: If the Court doesn't desire to answer Mr. Sacher's question I would like to ask the Court a question. Is it to be the rule, your Honor, that the jury is to hear only from the Government witnesses as to what they understood documents or teachings to mean, or are the defendants to be allowed to give their state of mind, their beliefs and their intentions? The Court: I think I see what you are up to. You have had a good rest, and you are right back here because of that.
425
Mr. Gladstein: I assign those remarks as improper, unwarranted and misconduct.
The Court: That is all right. (P. 6765.)
426
The Court: I see you came back after a long rest determined to be provocative.
427
Mr. Gladstein: I had no rest. I was working on this case.
428
The Court: You can be just as provicative, you can be just as unruly as you choose. You know, you have tried it so often and found that it is unavailing. Now go ahead and do as you like. (P. 6791.)
429
Mr. Gladstein: That is objected to.
430
The Court: Object away. There is no qjury present.
431
Mr. Gladstein: I assign that as judicial misconduct. I object very seriously and I assign it as prejudice and bias of the Court.
432
The Court: You did refuse to answer questions when I put them to you and your colleagues again and again. What is the use of making out you didn't do it?
433
Mr. Gladstein: And I assign those remarks as evidence of the prejudice of the Court.
434
The Court: You hear your own voice and you think because you say something that makes it so. You have been doing it here for months. Now go ahead, Mr. Crockett. Let's see what the rest of your argument is. (Pp. 6815—6816.) (Conduct involved in Specification XXVII—pp. 6845—6847; June 3, 1949.)
435
Mr. McCabe: * * * I say that the reason counsel—I am speaking for myself now—the reason that I have perhaps not made similar utterances is simply because of my greater training to restrain myself under great provocation.
436
The Court: Well, you have been impudent enough to me on numerous occasions, and were it not for the fact that I have determined that this trial shall not be disrupted by such things I should have taken action against you and against each of your colleagues long before this, but I shall not do it. I shall leave that to the proper authorities to take care of in due course, and there it shall rest, but you need be under no misapprehension; I have been quite fully cognizant of your contemptuous conduct and your impudence.
437
Defendant Winter: Your Honor, may I—
438
Mr. McCabe: I deny the imputation of impudence or misconduct. I am perfectly willing to answer to any proper body for any actions of mine in this courtroom or out.
439
The Court: Do you remember, Mr. McCabe, the date when you accused me of doing certain things just so that the reporters could meet the deadline for the press? Do you remember that occasion?
440
Mr. McCabe: Yes, I recall it quite well.
441
The Court: You thought what you said then was entirely proper, no doubt.
442
Mr. McCabe: I thought it was accurate.
443
The Court: Well, yes, I thought it was contemptuous. Now I just mention that so that you may not suppose that I am not aware of the precise incidents that I speak of. (Pp. 6848—6849.) (Conduct involved in Specification XXVIII—pp. 6936—6937; June 7, 1949.)
444
Mr. Sacher: I am offended on these constant aspersions on the veracity of representations that I make. I am an officer of this court and I resent these—
445
The Court: There was an instance when you deliberately lied to me when they were passing these press releases. You said that they were not and you were caught red-handed.3
446
Mr. Sacher: That is the most offensive charge that can be made against an officer of the court. Your Honor knew that that was happening in the back part of the courtroom and I was unable to see that. That is one of the most offensive things you can do to a lawyer. What has a lawyer got but his honor.
447
The Court: That is the first thing you did and you were caught red-handed.
448
Mr. Sacher: That is the most detestable thing I ever heard from a judge. I resent that and I urge that it be expunged from the record.
449
The Court: You asked me why I wouldn't take your word for anything and I told you. I might enumerate other incidents were I so inclined. You can get just as violent as you want; the fact is I do not take your word for anything.
450
Mr. Sacher: I will defend my honor as a member of the bar against your Honor or anybody else. I will not accept a denunciation that I am a liar. When the time comes that I don't have the mental capacity to defend my clients on any other basis than lying I will resign from the bar. I think an idiot resorts to lying. I don't have to do it.
451
The Court: You did it.
452
We better let these little amenities go. I can see from your belligerent manner if you thought you could, you might physically come up to the bench and physically attack me. I know your manner, and it doesn't frighten me in the slightest degree. Let's get back to what we were doing. (P. 7029.)
453
The Court: I have a very definite opinion of you, too, Mr. Crockett.
454
Mr. Crockett: But I am not speaking about Mr. Crockett.
455
The Court: But I shall not express it because I see no occasion to do it. I should not have done it to Mr. Sacher, had he not asked me.
456
Mr. Crockett: I am not speaking about Mr. Crockett, and I am fully aware that you probably do have a very definite opinion as to Mr. Crockett.
457
The Court: Why, I have never been so insulted and baited, nor have I ever heard of any other judge being so insulted and baited, during the trial as I have by you lawyers representing the defendants here in this case from the 17th of January on, and I will make no bones about it. That is what has been going on, and I have tolerated it because of the reasons I have indicated, but make no misunderstanding as to what I think about it. (Pp. 7030 7031.)
458
(Conduct involved in Specification XXIX—pp. 7086—7087; June 9, 1949.) The Court: I see Mr. Sacher smiling.
459
Mr. Sacher: Your Honor takes awfully good notice about my facial expressions, but when Mr. Gladstein spoke about Mr. Gordon jumping up like a popinjay you saw nothing.
460
The Court: Well, you did seem pleased. Now you seem different.
461
Mr. Sacher: We are under surveillance but you never see anything that the prosecution does.
462
The Court: That is what you say. It may be because there is nothing done by the prosecution to make it necessary for comment.
463
I told you some little time ago that I wasn't going to permit you or the other lawyers to get away with anything while I was presiding here and I shall not. (P. 7094.)
464
The Court: I wish you would stop talking about my nodding my head, scratching my head and pulling my ears. Why don't you leave that all out? What good does that do.
465
Mr. Isserman: Well, whether your Honor—
466
Mr. Crockett: Pardon me one minute. I think it is very important because there are some things that are not made a matter of record on the Court—
467
The Court: You haven't missed any of them.
468
Mr. Crockett:—so far as the transcript is concerned. Very frequently I notice in the course of testimony your Honor makes frequent glances over toward the jury or some facial expression that gives the impression, to me at least, that the Court—
469
The Court: Well, it is funny—
470
Mr. Crockett: Pardon me. I think that whenever it is so obvious, as it was a while ago, some mention of it should be made so that it will be carried in the record.
471
The Court: If there is something about my winking at the jury or something of that kind, I am surprised that you did not mention it at the time.
472
Mr. Crockett: No, I have not noticed a winking yet. If I had I would have mentioned it.
473
The Court: Well, there isn't much that you have missed, but you may just as well go ahead and get it all down and out of your system. I deny that I have ever done anything of the kind. I wouldn't stoop to such a thing, and I do not see how you lawyers have the effrontery to keep saying so. (Pp. 7269—7270.)
474
Mr. Gladstein: Now your Honor has said that if this exhibit were received it would be unprecedented. Now first of all I think that that wouldn't be an obstacle because a number of unprecedented things have already occurred commencing with the returning of the indictment.
475
The Court: Ha ha, you know I expected you were going to do that.
476
Mr. Gladstein: I can't overlook the opportunity nor the necessity to reply to your Honor.
477
The Court: All right.
478
Mr. Gladstein: This is an unprecedented case. It presents unprecedented issues. It has been handled in an unprecedented way.
The Court: I'll say it has. (P. 7670.)
479
Mr. Gladstein: May I say one word?
480
The Court: If you ever did that, Mr. Gladstein, I think I would drop dead.
481
Mr. Gladstein: When I say one word, I mean it in a lawyer's sense.
The Court: All right. (P. 7676.)
482
The Court: Well, you accuse me of being an old tyrant and everything under the sun, accuse me of judicial misconduct of various kinds, and I take that in good temper, and you speak about not having a chance to prove your case. You have had ample chance to prove your case and anybody who reads this record can see that you have had. So there is no need of your saying how I cut you out and how I won't take the necessary time. I am going to take the necessary time but I am going to be the one to decide what is necessary. (P. 7929.)
483
(Conduct involved in Specification XXX—p. 8045; June 30, 1949.)
484
The Court: Mr. Sacher, you cannot laugh these things off.
485
Mr. Sacher: I am not laughing anything off.
486
The Court: You must have laughed at something, and it is very offensive to me.
487
Mr. Sacher: It is so obviously unrelated to the case, I cannot imagine why it is being asked.
488
The Court: Well, I can imagine, and I imagine there are others who can too, and I think, perhaps, that is the reason you are laughing—
489
Mr. Sacher: No, that is not the reason at all.
490
The Court:—laughing it off.
491
Mr. Sacher: That is not the reason I am laughing.
492
The Court: You should stop.
493
Mr. Sacher: And I should say that I haven't been laughing.
494
The Court: You should have thought of that first. (P. 9167.)
495
Mr. Sacher: It used to be done to me on cross-examination.
496
The Court: What used to be done to you?
497
Mr. Sacher: This business of pointing out that a question was not in the precise words of the preceding question.
498
The Court: I recall nothing of that kind. I take it that is another one of your offensive comments attempting to make it appear that I am partial to the Government—(P. 9185.)
499
Mr. Sacher: But it is contradictory. It speaks of a rule and it speaks of 'sometimes.' Now which is it? Is it sometimes or is it a general rule?
500
Mr. McGohey: I will withdraw the question and reframe it, your Honor, so that we can save the argument and get on.
501
The Court: I wish to state on the record that I am physically and mentally incapable of going through very much more of this wrangling and argument and I shall have to do something about it if it is continued and counsel refuse to obey my admonition. It is more than any human being can stand. (P. 9220.)
502
Mr. Isserman: If the Court please, may I be heard for a moment? The Court: I suppose my mentioning my state of fatigue has merely served as a spur to additional argument this morning. (P. 9224.)
503
Defendant Dennis: * * * In view of the biased and prejudicial rulings, restricting the—
504
The Court: You mean bias of mine?
505
Defendant Dennis: Biased, as I understood them, your Honor.
506
The Court: I say, but you mean bias by me? Do you say that?
507
Defendant Dennis: On the part of the Court.
508
The Court: That is what I thought. I thought it might be well to have it clear what you claimed. (P. 9344.)
509
(Conduct involved in Specification XXXI—pp. 9376—9377, 9403 9405; Aug. 1, 1949.)
510
(Conduct involved in Specification XXXII—pp. 9533—9537, 9541 9543; Aug. 3, 1949.)
511
Mr. Sacher: * * * I don't want to appeal to you on the basis of serving Mr. Isserman's comfort or Mr. Gladstein's or Mr. Crockett's—
512
The Court: Or that golf player, Mr. McCabe.
513
Mr. Sacher: Well, he is not a golf player. I think you do him an injustice.
514
The Court: If he hadn't been playing golf for about a week when I saw him the other day, I miss my guess.
515
Mr. Sacher: No. I am sure if you are not a golf enthusiast then you are doing him an injustice; if you are, then you are just envious.
516
The Court: Well, to tell you the honest truth, that is just putting the finger right on it. (P. 9688.)
517
The Court: You see, I have made certain rulings in the last few days which I felt the circumstances compelled me to make and which have led to the rulings that I am now making. I am determined to survive this case.
518
Mr. Sacher: Well, no one has any purpose that you shouldn't, your Honor.
519
The Court: And it is very true that there has been an evolution in my rulings, and necessarily so, and although all the defense, including some of the defendants and all of the lawyers are calling me all kinds of names, I was trying, according to my lights, to be extremely liberal, and I am quite sure that the record will show that I was. I then found that a lot of these matters, such as the one you speak of now, simply had to be cut out. They have no bearing on the case, and so I have had to change the character of my rulings on the basis of preventing cumulative evidence and on the basis generally of having a power that must exist to terminate a case within bounds, such as to be consistent with the maintenance of the health of the jurors and the Judge and everybody concerned. (P. 9689.)
520
(Conduct involved in Specification XXXIII—p. 9731; Aug. 5, 1949.)
521
(Conduct involved in Specification XXXIV—pp. 9886—9887; Aug. 10, 1949.)
522
Mr. Crockett: I object, your Honor, unless Mr. Gordon is specifying some particular classic by some particular author.
523
The Court: I think he will get around to it in a minute. Overruled.
524
Mr. Crockett: I thought we were not having these general questions, though.
525
The Court: Well, you see, I get the import of what you say. You are just trying to make it appear, perhaps for the benefit of the spectators, that I ruled one way this morning as to your general questions and that I am so prejudiced and biased that I ruled just the opposite on similar questions put by Mr. Gordon. Now, you know there is nothing in that. These questions are put on cross-examination here and they are perfectly proper, and I suggest that those little ironical insinuations be omitted. (P. 10228.)
526
Mr. Gladstein: I object to your Honor's question.
527
The Court: Overruled.
528
Mr. Gladstein: Also to the manner in which your Honor asked the question.
529
The Court: There is nothing about the manner.
530
Mr. Gladstein: And the gesture that accompanied it.
531
The Court: I raised my hand and you criticized me a number of times and I see no basis for such criticisms. I am going to get at this—
532
Mr. Gladstein: Naturally your Honor sees no basis for criticism but an attorney who represents and defends clients may have a different view.
533
The Court: What I object to is false statements of the things that are said to be done by me and not done by me. That is what I object to and you and your colleagues have filled this record with statements of things I am supposed to have done and I never did. Every time you start that I am going to see the record is kept straight. (Pp. 10718—10719.)
534
(Conduct involved in Specification XXXV—p. 10748; Aug. 26, 1949.)
535
(Conduct involved in Specification XXXVI—pp. 10855—10856; Aug. 29, 1949.)
536
(Conduct involved in Specification XXXVII—p. 11213; Sept. 9, 1949.)
537
(Conduct involved in Specification XXXVIII—pp. 11418—11421; Sept. 14, 1949.)
538
(Conduct involved in Specification XXXIX—p. 11432; Sept. 14, 1949.)
539
(Conduct involved in Specification XL—pp. 12064—12065; Oct. 4, 1949.)4
540
Mr. Justice DOUGLAS, dissenting.
541
I agree with Mr. Justice FRANKFURTER that one who reads this record will have difficulty in determining whether members of the bar conspired to drive a judge from the bench or whether the judge used the authority of the bench to whipsaw the lawyers, to taunt and tempt them, and to create for himself the role of the persecuted. I have reluctantly concluded that neither is blameless, that there is fault on each side, that we have here the spectacle of the bench and the bar using the courtroom for an unseemly demonstration of garrulous discussion and of ill will and hot tempers.
542
I therefore agree with Mr. Justice BLACK and Mr. Justice FRANKFURTER that this is the classic case where the trial for contempt should be held before another judge. I also agree with Mr. Justice BLACK that petitioners were entitled by the Constitution to a trial by jury.
1
Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137.
2
United States v. Sacher, 2 Cir., 182 F.2d 416.
3
Id., 182 F.2d at page 423.
4
Id., 182 F.2d at page 454.
5
Id., 182 F.2d at page 463.
6
United States v. Dennis, 2 Cir., 183 F.2d 201, 225.
7
Id., 183 F.2d at page 226.
8
341 U.S. 952, 71 S.Ct. 1010, 95 L.Ed. 1374.
9
342 U.S. 858, 72 S.Ct. 84.
10
182 F.2d at pages 430—453.
11
18 U.S.C. § 401, 18 U.S.C.A. § 401, 'Power of court,' provides:
'A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as—
'(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;
'(2) Misbehavior of any of its officers in their official transactions;
'(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.'
18 U.S.C. § 402, 18 U.S.C.A. § 402, 'Contempts constituting crimes,' provides for criminal contempt prosecutions of acts which are in themselves criminal as well as contemptuous, but adds: 'This section shall not be construed to relate to contempts committed in the presence of the court, or so near thereto as to obstruct the administration of justice, nor to contempts committed in disobedience of any lawful writ, process, order, rule, decree, or command entered in any suit or action brought or prosecuted in the name of, or on behalf of, the United States, but the same, and all other cases of contempt not specifically embraced in this section may be punished in conformity to the prevailing usages at law.'
12
Rule 42, Fed.Rules Crim.Proc., 'Criminal Contempt,' reads:
'(a) Summary Disposition. A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.
'(b) Disposition Upon Notice and Hearing. A criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. The defendant is entitled to a trial by jury in any case in which an act of Congress so provides. He is entitled to admission to bail as provided in these rules. If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant's consent. Upon a verdict or finding of guilt the court shall enter an order fixing the punishment.'
13
In Hallinan v. United States, 9 Cir., 182 F.2d 880, certiorari denied, 341 U.S. 952, 71 S.Ct. 1010, 95 L.Ed. 1375, defense counsel was summarily adjudged in contempt under Rule 42(a) and sentenced to six months' imprisonment while the trial was still in progress. The trial judge's power to do so was sustained over the objection that he had delayed overnight and that part of the conduct specified was that of four and five days earlier. In MacInnis v. United States, 9 Cir., 191 F.2d 157, cert. denied, 342 U.S. 953, 72 S.Ct. 628, this date, defense counsel was adjudged in contempt for conduct the day before. Filing of the certificate of contempt was delayed more than three weeks, and it was announced that the fixing of the punishment would be deferred until the end of the trial. When the trial was concluded two months after the contempt, counsel was immediately sentenced to three months imprisonment. The trial judge's power to do so was upheld.
14
Among them: Ex parte Terry, 128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405; Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767; Nye v. United States, 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172; Pendergast v. United States, 317 U.S. 412, 63 S.Ct. 268, 87 L.Ed. 368; In re Michael, 326 U.S. 224, 66 S.Ct. 78, 90 L.Ed. 30.
15
In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682.
1
The defendant Dennis, who had acted as his own lawyer, is included in this group.
2
While the full text of the colloquy is pertinent, all of it is not repeated here as it is set out at pp. 487, 488 of 72 S.Ct., of the appendix to Mr. Justice FRANKFURTER'S opinion.
3
The Court of Appeals held that the record failed to sustain the accusations that Sacher had spoken falsely about the press releases. Specification XV based on that charge was reversed.
4
The parts of Sacher's statement immediately preceding the court's interruption were as follows:
'And I respectfully submit, your Honor, that a country with an intimidated bar is a country whose liberties are in danger. Here in America we know that the American bar occupies a place of honor in the achievement and preservation of the liberties of our people, and I say, your Honor, with all due respect to your decision and judgment here that any threat to the integrity, independence and courage of the bar can only constitute a threat to the integrity and wholesomeness and preservation of our civil liberties.
'For myself let me say, your Honor, that I speak of intimidation not in personal terms. If it be necessary that in the cause of American liberty I shall have to serve six months, then I say to your Honor the price will have been very, very small. I hope that it will not be necessary in our country for an advocate to have to do that, but if it be necessary—
'The Court: It isn't the price of liberty; it is the price of misbehavior and disorder as stated in the certificate.
'Mr. Sacher: I say to your Honor—'
5
I do not think the convictions of these lawyers for contempt should be affirmed on the theory that such has already been expressly or impliedly done by the 'differently composed Court of Appeals' that affirmed conviction of the Communist leaders. That 'differently composed' court merely held that no conduct of the trial judge called for reversing the convictions of the Communist leaders. I think that affirmance does not support an inference that the 'differently composed' court would also have sustained a judgment of contempt against the lawyers. Moreover while this 'differently composed' court severely condemned the lawyers' conduct, it apparently felt constrained to imply that the trial judge 'did not conduct himself with the imperturbability of a Rhadamanthus * * *.' 183 F.2d 226.
6
New Orleans v. The Steamship Co., 20 Wall. 387, 392, 22 L.Ed. 354; Gompers v. United States, 233 U.S. 604, 610, 611, 34 S.Ct. 693, 695, 58 L.Ed. 1115; Michaelson v. United States, 266 U.S. 42, 66—67, 45 S.Ct. 18, 20, 69 L.Ed. 162; Pendergast v. United States, 317 U.S. 412. 416—418, 63 S.Ct. 268, 270, 87 L.Ed. 368; but cf. Myers v. United States, 264 U.S. 95, 103, 44 S.Ct. 272, 273, 68 L.Ed. 577.
7
Frankfurter and Landis, Power of Congress over Procedure in Criminal Contempts in Inferior Federal Courts, 37 Harv.L.Rev. 1010, 1047. See also Nelles & King, Contempt by Publications in the United States, 28 Col.L.Rev. 401; Fox, History of Contempt of Court (1927).
8
During the parliamentary discussion of Mr. Fox' libel bill, which sought to preserve trial by jury, it was called to the Parliament's attention that Mr. Justice Buller, while trying the Dean of St. Asaph at Shrewsbury, had declared the 'rights of appeal' to be the 'dearest birth-rights' of an Englishman: 'The marquis (of Lansdowne) ridiculed the declaration, that a right of appeal in arrest of judgment, and of moving for a writ of error, was one of the dearest birth-rights of Englishmen, asserting that it was neither more nor less than the being turned over from one set of lawyers to another, and from that other to a third. In fact, it was to be turned over from the judge who tried the cause, to himself and three others, in a second place; and from them to themselves again, mixed with a few more judges, in a third place!' Hansard, Parliamentary History of England, Vol. 29, p. 1419.
1
See Notes of Advisory Committee on Rule 42(a), Federal Rules of Criminal Procedure.
2
Ex parte Terry, 128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405, presented a totally different situation and lends no support whatever to the action of the trial court in this case. As was stated in the order of commitment: 'David S. Terry was guilty of a contempt of this court, by misbehavior in its presence, and by a forcible resistance in the presence of the court to a lawful order thereof * * *.' Id., 128 U.S. at page 298, 9 S.Ct. at page 77, 32 L.Ed. 405. This briefly indicates the differentianting circumstances between the Terry case and this case. While the United States Circuit Court was sitting and one member was delivering its opinion in a pending case, Mrs. Terry interrupted the reading by a violent outburst. When the United States Marshal was ordered by the court to remove her from the courtroom, her husband, Mr. Terry, intervened to assault the Marshal. Upon the conclusion of the reading of the opinion, following this interruption, the court, having duly deliberated, found both Mr. and Mrs. Terry guilty of contempt and sentenced them for it. Plainly enough Terry's contempt did not touch the judges personally, nor implicate their attitude toward counsel. It involved simple physical actions in full view of the three judges. The judgment of contempt and sentencing followed promptly upon events that constituted a single brawl interrupting the actual administration of justice. See In re Terry, C.C., 36 F. 419; Swisher, Stephen J. Field—Craftsman of the Law 321—341.
1
Since the whole certificate of contempt was published as an appendix to the opinion in the Court of Appeals and is readily available, 182 F.2d 416, 430—453, there is here not reproduced any part of the record which has already been quoted adequately in the specifications of the certificate. Each specification should be examined in connection with this Appendix, at the appropriate point indicated herein. Each specified episode involving contemptuous conduct should be placed in the trial setting as shown by the further excerpts reproduced here from the whole record.
The page references are to the printed record before this Court in Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137.
2
Since Specification I charged generally 'a wilful, deliberate, and concerted effort to delay and obstruct the trial,' Specification II charges the first specific act of contempt in the principal trial. See 182 F.2d at 431—432. The portions of the trial record reproduced in the specifications of the contempt certificate give, because of their brevity, only a mutilated picture of the trial. The places in the record where the alleged contempts occurred are indicated in order that each incident of contempt may be viewed in relation to the record excerpts set forth here.
3
The incident referred to by the judge—reported at pages 4228—4229 of the record—was the basis for his Specification XV. The conviction of Sacher on that specification was unanimously reversed by the Court of Appeals because that court did not think it was sufficiently clear 'that Sacher was attempting to mislead the court.' 182 F.2d 416, 424—425.
4
The judgments of contempt on all specifications were filed on October 14, 1949.
| 01
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343 U.S. 130
72 S.Ct. 571
96 L.Ed. 833
RUTKINv.UNITED STATES.
No. 195.
Argued Dec. 3, 1951.
Decided March 24, 1952.
Rehearing Denied May 12, 1952.
See 343 U.S. 952, 72 S.Ct. 1039.
Mr. Jack L. Cohen, Newark, N.J., for petitioner.
Mr. Irving I. Axelrad, Washington, D.C., for respondent.
Mr. Justice BURTON delivered the opinion of the Court.
1
The principal issue before us is whether money obtained by extortion is income taxable to the extortioner under § 22(a) of the Internal Revenue Code.1 For the reasons hereafter stated we hold that it is.
2
The petitioner, Rutkin, was indicted under 26 U.S.C. § 145(b), 26 U.S.C.A. § 145(b),2 for willfully attempting to evade and defeat a large part of his income and victory taxes for 1943. He was charged with filing a false and fraudulent return stating his net income to be $18,966.64, whereas he knew that it was $268,622.04. That difference, which would increase his tax liability from $6,843.93 to $222,408.32, was due largely to his omission from his original return of $250,000 received by him in cash from Joseph Reinfeld. The United States claims that this sum was obtained by petitioner by extortion and as such was taxable income. Petitioner contests both the fact that the money was obtained by extortion and the conclusion of law that it was taxable income if so obtained. He contends also that he did not willfully attempt to evade or defeat the tax. Petitioner was found guilty by a jury in the United States District Court for the District of New Jersey, fined $10,000 and sentenced to four years in prison. The Court of Appeals affirmed, one judge dissenting. 189 F.2d 431. We granted certiorari, 342 U.S. 808, 72 S.Ct. 50, so as to pass upon the alleged conflict between that decision and the decision in Commissioner of Internal Revenue v. Wilcox, 327 U.S. 404, 66 S.Ct. 546, 90 L.Ed. 752.
3
The facts are unusual but there can be no doubt that, under the instructions given the jury, we must regard its verdict as reflecting its conclusion that the $250,000 was obtained by petitioner by extortion.3 There was substantial evidence supporting that result. Reinfeld's first association with petitioner was in 1929 with several others in a bootlegging operation known as the 'High seas venture.' It was accomplished through the use of a ship in the sale of whiskey at sea more than 12 miles from shore. Reinfeld testified that petitioner contributed no money to the enterprise but was taken in because Reinfeld's associates were afraid that otherwise they would get 'interference and trouble' from petitioner. His interest was recognized to be 6% but, when the venture was liquidated in 1933, he already was overdrawn and no distribution was made to him. Without including petitioner, the others then organized Browne Vintners Co., Inc., a New York corporation, to engage in the liquor business. In 1936 petitioner, without making an investment, claimed a 6% interest in Browne Vintners. Despite Reinfeld's denial of petitioner's claim, Reinfeld paid him $60,000 and took from him an assignment of 'any and all of such shares of capital stock in the said Browne Vintners Co. Inc., that I am entitled to.' In 1940 all the Browne Vintners stock was sold for $7,500,000 to a purchaser who also assumed $8,000,000 of the company's debts. The shares of stock when sold stood in the names of, and were transferred by, 'nominees' so as to conceal the identity of Reinfeld and the other beneficial owners. A capital gains tax upon the profits from these sales was paid by the respective nominees.4 Petitioner was neither a stockholder of record nor a beneficial owner of any of the stock of the company at any time.
4
In 1941, in response to petitioner's request, Reinfeld gave him about $10,000 to help buy a tavern. When petitioner used the money for other purposes Reinfeld refused to finance him further and his 'trouble' with petitioner began. In 1942 petitioner again claimed that he had had an interest in Browne Vintners Company and that Reinfeld must give him $100,000 to help him pay his debts. Upon Reinfeld's refusal, petitioner threatened to kill him. From that time on, the record presents a lurid story of petitioner's unsatisfied demands upon Reinfeld for various sums up to $500,000, petitioner's threatening use of a gun and his repeated statements that he would kill Reinfeld and Reinfeld's family unless his demands were met. Finally, on May 11, 1943, in New Jersey, Reinfeld paid petitioner $250,000 in cash.5
5
Throughout this melodrama petitioner asserted that he was entitled to the payments he demanded from Reinfeld because of petitioner's alleged former interest in Browne Vinters Company. That interest never was identified by petitioner. Reinfeld and others testified positively that petitioner never had any such interest. Nevertheless, on May 11, Reinfeld handed to petitioner $250,000 in cash at the same time that Reinfeld paid $358,000 to Zwillman and Stacher representing their conceded interest in the proceeds of Browne Vintners stock. Petitioner, with Zwillman and Stacher, thereupon signed a 'general release.' It did not state the amounts paid but it did purport to release Reinfeld, Browne Vintners Company and others from all claims the signers had against them.
6
Under the jury's verdict, we accept the fact to be that petitioner had no basis for his claim to this $250,000 and that he obtained it by extortion. Accordingly, if proceeds of extortion constitute income taxable to the extortioner, his omission of it from his tax return was unlawful. The further factual issue whether, under all the surrounding circumstances, petitioner's omission of the $250,000 from his tax return amounted to a willful attempt to evade and defeat the tax is not open to review here. That issue is settled by the verdict of the jury supported by substantial evidence.6 It remains for us to determine the legal issue of whether money obtained by extortion is taxable to the extortioner under § 22(a).
7
Under the instructions to the jury, extortion here meant that the $250,000 was paid to petitioner in response to his false claim thereto, his harassing demands therefor and his repeated threats to kill Reinfeld and Reinfeld's family unless the payment were made.7 Petitioner was unable to induce Reinfeld to believe petitioner's false and fraudulent claims to the money to be true. He induced Reinfeld to consent to pay the money by creating a fear in Reinfeld that harm otherwise would come to him and to his family. Reinfeld thereupon delivered his own money to petitioner. Petitioner's control over the cash so received was such that, in the absence of Reinfeld's unlikely repudiation of the transaction and demand for the money's return, petitioner could enjoy its use as fully as though his title to it were unassailable.
8
An unlawful gain, as well as a lawful one, constitutes taxable income when its recipient has such control over it that, as a practical matter, he derives readily realizable economic value from it. Burnet v. Wells, 289 U.S. 670, 678, 53 S.Ct. 761, 764, 77 L.Ed. 1439; Corliss v. Bowers, 281 U.S. 376, 378, 50 S.Ct. 336, 337, 74 L.Ed. 916. That occurs when cash, as here, is delivered by its owner to the taxpayer in a manner which allows the recipient freedom to dispose of it at will, even though it may have been obtained by fraud and his freedom to use it may be assailable by someone with a better title to it.
9
Such gains are taxable in the yearly period during which they are realized. This statutory policy is invoked in the interest of orderly administration. '(C)ollection of the revenue cannot be delayed, nor should the Treasury be compelled to decide when a possessor's claims are without legal warrant.' National City Bank v. Helvering, 2 Cir., 98 F.2d 93, 96. There is no adequate reason why assailable unlawful gains should be treated differently in this respect from assailable lawful gains. Certainly there is no reason for treating them more leniently. United States v. Sullivan, 274 U.S. 259, 263, 47 S.Ct. 607, 71 L.Ed. 1037.
10
There has been a widespread and settled administrative and judicial recognition of the taxability of unlawful gains of many kinds under § 22(a).8 The application of this section to unlawful gains is obvious from its legislative history. Section II, subd. B of the Income Tax Act of 1913 provided that 'the net income of a taxable person shall include gains, profits, and income * * * from * * * the transaction of any lawful business carried on for gain or profit, or gains or profits and income derived from any source whatever * * *.' (Emphasis supplied.) 38 Stat. 167. In 1916, 39 Stat. 756, this was amended by omitting the one word 'lawful' with the obvious intent thereafter to tax unlawful as well as lawful gains, profits or income derived from any source whatever.9
11
There is little doubt now that where unlawful gains are secured by the fraud of the taxpayer they are taxable.10 In the instant case it is not questioned that the $250,000 would have been taxable to petitioner if he had obtained it by fraudulently inducing Reinfeld to believe petitioner's false claims to be true. That being so, it would be an extraordinary result to hold here that petitioner is to be tax free because his fraud was so transparent that it did not mislead his victim and his victim paid him the money because of fear instead of fraud.
12
We do not reach in this case the factual situation involved in Commissioner of Internal Revenue v. Wilcox, 327 U.S. 404, 66 S.Ct. 546, 90 L.Ed. 752. We limit that case to its facts. There embezzled funds were held not to constitute taxable income to the embezzler under § 22(a). The issue here is whether money extorted from a victim with his consent induced solely by harassing demands and threats of violence is included in the definition of gross income under § 22(a). We think the power of Congress to tax these receipts as income under the Sixteenth Amendment is unquestionable. The broad language of § 22(a) supports the declarations of this Court that Congress in enacting that section exercised its full power to tax income.11 We therefore conclude that § 22(a) reaches these receipts.
13
We have considered the other contentions of petitioner but find them without merit sufficient to justify a reversal or remand of the case.
14
The judgment of the Court of Appeals accordingly is affirmed.
15
Affirmed.
16
Mr. Justice BLACK, with whom Mr. Justice REED, Mr. Justice FRANKFURTER, and Mr. Justice DOUGLAS concur, dissenting.
17
In Commissioner of Internal Revenue v. Wilcox, 327 U.S. 404, 66 S.Ct. 546, 90 L.Ed. 752, decided February, 1946, we held that embezzled money did not constitute taxable income to the embezzler under § 22(a) of the Internal Revenue Code. We there pointed out that the embezzler had no bona fide legal or equitable claim to the money, was under a definite legal obligation to return it to its rightful owner, and consequently had no more received the kind of 'gain' or 'income' which Congress has taxed than if he had merely borrowed money. One who extorts money not owed him stands in this precise situation. He has neither legal nor equitable claim to the extorted money and is under a continuing obligation to return it to its owner. See, e.g., Bank of the United States v. Bank of Washington, 6 Pet. 8, 19, 8 L.Ed. 299; Miller v. Eisele, 111 N.J.L. 268, 168 A. 426; 2 N.J.S.A. 2:73—1. A COMPARISON of Mr. Justice BURTON'S opinion in this case with his dissent in the Wilcox case reveals beyond doubt that the Court today adopts the reasoning of his prior dissent, thereby rejecting the Wilcox interpretation of § 22(a). A tax interpretation which Congress has left in effect for six years is thus altered largely as a consequence of a change in the Court's personnel. I think that our former interpretation was right and do not believe that the Government is suffering because of a failure to collect income taxes from embezzlers and extortioners. Indeed further considerations strengthen my support of our Wilcox holding.
18
I fully agree that earnings from businesses such as gambling and bootlegging are subject to the income tax law even though these earnings are derived from illegal transactions. United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037. The majority seems to think that the Wilcox case holds otherwise because some states have laws which under special circumstances permit some particular groups to assert a legal claim for recovery of gambling losses or money paid for bootleg liquor. But these state laws vary far too much in their scope and operation to justify saying that these businessmen never have a bona fide legal or equitable claim to monies paid them. And '* * * we must generally assume, in the absence of a plain indication to the contrary, that Congress when it enacts a statute is not making the application of the federal act dependent on state law.' Jerome v. United States, 318 U.S. 101, 104, 63 S.Ct. 483, 485, 87 L.Ed. 640. Moreover, even if we were to take these state recoupment laws into consideration, the sums recovered under them would do no more than decrease the yearly net earnings of such questionable businesses. To all intents and purposes bootleggers and gamblers are engaged in going businesses and make regular business profits which should be taxed in the same manner as profits made through more legitimate endeavor. However, in my judgment it stretches provious tax interpretations too far to classify the sporadic loot of an embezzler, an extortioner or a robber as taxable earnings derived from a business, trade or a profession. I just do not think Congress intended to treat the plunder of such criminals as theirs.
19
It seems illusory to believe, as the majority apparently does, that the burden on honest American taxpayers will be lightened by a governmental policy of pursuing extortioners in futile efforts to collect income taxes. I venture the guess that this one trial has cost United States taxpayers more money than the Government will collect in taxes from extortioners in the next twenty-five years. If this statute is to be interpreted on the basis of what is financially best for honest taxpayers, it probably should be construed so as to save money by eliminating federal prosecutions of state crimes under the guise of punishing tax evaders.
20
Since it seems pretty clear that the Government can never collect substantial amounts of money from extortioners, there must be another reason for applying the tax law to money they extract from others. The Government's brief is suggestive of the only other reason that occurs to me—to give Washington more and more power to punish purely local crimes such as embezzlement and extortion. Today's decision illustrates an expansion of federal criminal jurisdiction into fields of law enforcement heretofore wholly left to states and local communities. I doubt if this expansion is wise from the standpoint of the United States or the states.
21
Insofar as the United States is concerned, many think that taking over enforcement of local criminal laws lowers the prestige of the federal system of justice. It certainly tends to make the federal system top-heavy. Of supreme importance is the fact that the United States cannot perform the monumental tasks which lie beyond state power if the time, energy and funds of federal institutions are expended in the field of state criminal law enforcement.1
22
Federal encroachment upon local criminal jurisdiction can also be very injurious to the states. Extortion, robbery, embezzlement and offenses of that nature are traditionally matters of local concern.2 The precise elements of these offenses as well as the problems underlying them vary from state to state. Federal assumption of the job of enforcing these laws must of necessity tend to free the states from a sense of responsibility for their own local conditions.3 Even when states attempt to play their traditional role in the field of law enforcement, the overriding federal authority forces them to surrender control over the manner and policy of construing and applying their own laws. State courts not only lose control over the interpretation of their own laws,4 but also are deprived of the chance to use the discretion vested in them by state legislatures to impose sentences in accordance with local ideas. Moreover, state prosecutors are deprived of the all-important function of deciding what local offenders should be prosecuted. Final authority to make these important decisions becomes located in the distant city of Washington, D.C. Here, as elsewhere, too many cooks may spoil the broth.
23
Moreover, I doubt if this expansion of federal criminal jurisdiction can be carried on in a manner consistent with our traditional ideas of what constitutes a fair trial in criminal cases. There is the question of the wisdom and fairness of subjecting a person to double and even triple prosecutions for the same conduct, since the nation, state and municipality might make this one mistake or wrong punishable as a crime. 'That consideration gives additional weight to the view that where Congress is creating offenses which duplicate or build upon state law, courts should be reluctant to expand the defined offenses beyond the clear requirements of the terms of the statute.' Jerome v. United States, supra, 318 U.S. at page 105, 63 S.Ct. at page 486. Of course, looked at technically, multiple prosecutions for the same conduct could be avoided by national prosecution of one part of the conduct, state prosecution of another part, and municipal prosecution of a third part. This would still leave a defendant faced with the burden of defending three separate prosecutions.
24
Expansion of federal criminal jurisdiction entails many other unfair and complicating factors. Criminal rules of substance and of procedure vary widely among the jurisdictions.5 Punishment is frequently different. In fact, the same kind of conduct may be ignored as not worth criminal punishment by one jurisdiction while considered a serious criminal offense by another. For example, under the Federal White Slave Law men can be imprisoned five years for conduct which many states would not hold criminal at all. Schwartz, Federal Criminal Jurisdiction and Prosecutors' Discretion, 13 Law and Contemporary Problems 64, 72. When faced with specific federal legislation, such differences in treatment may be inevitable, but I do not think the tax laws should be judicially extended for the purpose of taking from local officials the responsibility for prosecuting local offenses.
25
When the Government takes over a case like the one before us, the resulting confusion of issues is manifestly prejudicial to the defendant. Here for instance it can hardly be said that Rutkin was tried for tax evasion. Most of the 900 printed pages of oral testimony in the two week's trial are devoted to proof of things other than an attempt to evade the tax. Four pages deal with Rutkin's allegedly false 1943 tax return; three pages deal with the amount of tax Rutkin would have owed if he had received $250,000 more income than he actually reported; six pages contain testimony of Rutkin tending to show willful evasion of the tax laws so as to bring the case within Spies v. United States, 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418. A mere reference to the contents of the remaining 887 pages shows what a great threat there was that Rutkin would be convicted because he was a 'bad man' ('scoundrel' to use the trial court's title) regardless of whether he was guilty or innocent of the tax evasion charged.
26
Most of the evidence dealt with the following aspects of Rutkin's past life and associations: Back in prohibition days Rutkin had joined one Reinfeld and others in a bootlegging scheme called the 'High seas venture.' The organization made millions. About 1940, some time after prohibition ended, Reinfeld, apparently acting for the group, sold the business establishment for about $7,500,000 net. Reinfeld's accounting methods and management of the proceeds were not satisfactory to his associates. They claimed that Reinfeld held back more than his share of the millions. Reinfeld claimed that some of his former associates, including Rutkin, were 'overdrawn' and entitled to nothing out of the $7,500,000. This quarrel went on for several years during which time Reinfeld was required to pay hundreds of thousands of dollars to former partners as a result of their claims that he had swindled them. Rutkin was one of them. Rutkin's $250,000 was paid to him by lawyers whose reputations seem to have been above reproach. It was paid openly. And it was some eight years later when Rutkin sued Reinfeld for more millions that Reinfeld, apparently for the first time, charged that Rutkin had extorted the $250,000 under threats of death. Yet he has been convicted here of federal tax evasion on the theory that he was guilty of the crime of 'extortion.'6
27
From the beginning to the end the evidence in this case was devoted to showing the lawless life Rutkin, Reinfeld and their associates led from the 1920's to 1950, ranging from bootlegging to bribery to gambling. The charge of the court largely emphasized and reemphasized the iniquity of the criminal conduct shown by the testimony. Early in his charge the trial court told the jury: 'You are not deciding which is the bigger scoundrel, Reinfeld or Rutkin; they have both blandly admitted on the stand that they prostituted justice in this country; that they paid public servants to close their eyes to law violation, and that is a canker which eats away at the body public. But you are not passing upon respective degrees of scoundrelism between any two people. The bland way in which we were told that the Reinfelds and the Rutkins and the Zwillmans and all of the others prostituted justice should give us cause for pause, but we are not passing on that question now.'
28
In concluding his charge the trial court told the jury: 'The Government of the United States doesn't ask you to sacrifice anybody to prove its might. It asks you to do justice. That's all that Rutkin has a right to ask you to do, and that's what the government of the United States asks you to do. It asks you to remember its rights too, remembering that unpunished crime, undetected crime, are threats to the majesty and dignity of our government; and that unpunished crime undermines our government. We all of us must do that which is our duty and do it without fear or favor.'
29
My study of this record leads me to believe that the fantastic story of supposed extortion told here would probably never have been accepted by a jury if presented in a trial uncolored by the manifold other inflammatory matters which took up 887 of the 900 pages in this 'tax evasion' case.
30
If we are going to depart from the Wilcox holding, I think this is a poor case in which to do so. I would reverse this judgment.
1
'§ 22. Gross income
'(a) General definition. 'Gross income' includes gains, profits, and income derived from salaries, wages, or compensation for personal service * * * of whatever kind and in whatever form paid, or from professions, vocations, trades, businesses, commerce, or sales, or dealings in property, whether real or personal, growing out of the ownership or use of or interest in such property; also from interest, rent, dividends, securities, or the transaction of any business carried on for gain or profit, or gains or profits and income derived from any source whatever. * * *' (Emphasis supplied.) 53 Stat. 9, 53 Stat. 574, 26 U.S.C. § 22(a), 26 U.S.C.A. § 22(a).
2
'§ 145. Penalties
'(b) * * * attempt to defeat or evade tax. * * * any person who willfully attempts in any manner to evade or defeat any tax imposed by this chapter or the payment thereof, shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, be fined not more than $10,000, or imprisoned for not more than five years, or both, together with the costs of prosecution.' 53 Stat. 62—63, 26 U.S.C. § 145(b), 26 U.S.C.A. § 145(b).
3
The instructions included the following:
'That somebody lied and committed perjury is perfectly patent because contradictory stories have been told, and you must say where the truth lies; and the problem of determining that truth is solely and peculiarly yours. * * *
'But then we come to the admitted payment of $250,000. Rutkin says that that $250,000 was a final settlement of his claim in Browne Vintners, and if that is so—and the government does not contend that the capital gains tax was not paid—he would not be obliged to report that income. But Reinfeld says no, 'that was the result of extortion. He got that money out of me by threatening me and my family,' and he told the instances where those threats were made. There is one piece of corroboration of that, and that is from one of the six or seven people who were present in Holtz's cellar. * * *
'If that money was extorted and was paid as a result of threats, then it was taxable income and Rutkin was under the duty of reporting that tax. * * *
'* * * There is no contention here that the defendant didn't know he got the $250,000; the whole point is whether he got it by extortion or whether he got it properly. If he got it properly the tax was already paid.' (Emphasis supplied.)
4
The United States concedes that although, on a strict construction of the Internal Revenue Code, it may be that the proceeds of the sales should have been reported by the beneficial rather than by the record owners, their failure to so report the proceeds does not provide a satisfactory basis for a charge against them of a willful attempt to evade and defeat the tax in violation of § 145(b).
5
Reinfeld testified:
'Q. And did you think that their (your family's) lives were in danger? A. I thought so, yes.
'Q. Did you do anything to protect their lives? A. I paid off.
'Q. You thought that would protect them from a gunning man? A. I hoped so.'
6
That issue was presented to the jury in conformity with the views of this Court expressed in Spies v. United States, 317 U.S. 492, 499, 63 S.Ct. 364, 368, 87 L.Ed. 418. The charge included the following:
'If that money was extorted and was paid as a result of threats, then it was taxable income and Rutkin was under the duty of reporting that tax. But as I indicated to you before, the mere failure to report it doesn't satisfy the requirements of the law with regard to the violation of this statute, there must be something else which will indicate the willful intent to defeat and evade the tax. You may consider other elements that appear in the evidence, the fact that this money was paid over in cash; that no record of any kind was made of the receipt of that money; that the money was split and $100,000 of it sent to the sister-in-law of the defendant to be placed in her vault or 'wault' as it has been called here, and that the other $150,000 was placed in the defendant's own vault. You may consider these as factors surrounding the whole transaction.
'Rutkin says that he kept no books; kept no books at that time nor at any other time; kept no books when he received his profit, sixty, seventy, eighty thousand dollars a year, I think it was, from the bootlegging, and admits that he paid no tax; kept no books when he got this $250,000. These are all things that you may consider as circumstances surrounding the whole procedure. The payment of $250,000 was made in the presence of other people, these people being Zwillman, as I recall it, and Stacher who were there with Rutkin and the lawyers. Well, neither the lawyers nor any of these people, it seems to me, would be inclined to go out and publish it.'
There is no suggestion that petitioner relied, at any time, upon any defense for his omission of the $250,000 from his tax return other than his false claim that it represented his beneficial interest in Browne Vintners stock and that the stockholding nominees had paid a capital gains tax on that interest when it was sold in 1940. When this claim was proved to have been false, and necessarily known by petitioner to have been false, that proof not only destroyed petitioner's claim to the money itself, but it also demonstrated the willfulness of his attempt to evade or defeat paying any tax on the $250,000.
7
In the New Jersey statute, in effect in 1943, extortion was defined as follows:
'Any person who, with intent to extort from any person any money or other thing of value * * * shall directly or indirectly threaten to kill or to do any bodily injury to any man, woman or child unless a sum of money be paid, shall be guilty of a high misdemeanor and punished by imprisonment at hard labor for a term not exceeding thirty years, or by a fine not exceeding five thousand dollars, or both.' N.J.S.A. 2:127—4.
See also, the federal statute, now in effect, relating to extortion affecting interstate commerce: 'The term 'extortion' means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.' 60 Stat. 420, 18 U.S.C. § 420e—1(c) (Revised section 1951(b)(2)).
8
Johnson v. United States, 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704 (money paid to a political leader as protection against police interference with gambling); United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037 (illicit traffic in liquor); Humphreys v. Commissioner of Internal Revenue, 7 Cir., 125 F.2d 340 (protection payments to racketeer and ransom paid to kidnapper); Chadick v. United States, 5 Cir., 77 F.2d 961 (graft); United States v. Commerford, 2 Cir., 64 F.2d 28 (bribes); Patterson v. Anderson, D.C., 20 F.Supp. 799 (unlawful insurance policies); Petit v. Commissioner of Internal Revenue, 10 T.C. 1253 (black market gains); Droge v. Commissioner of Internal Revenue, 35 B.T.A. 829 (lotteries); Rickard v. Commissioner of Internal Revenue, 15 B.T.A. 316 (illegal prize fight pictures); McKenna v. Commissioner of Internal Revenue, 1 B.T.A. 326 (race track bookmaking).
9
For further discussion see dissent in Commissioner of Internal Revenue v. Wilcox, 327 U.S. 404, 410—411, 66 S.Ct. 546, 550, 90 L.Ed. 752.
10
For example, see Akers v. Scofield, 5 Cir., 167 F.2d 718. There the taxpayer swindled a wealthy widow out of substantial funds with which he was to conduct fraudulently represented treasure hunts. He was required to pay taxes on those funds.
11
Helvering v. Bruun, 309 U.S. 461, 468, 60 S.Ct. 631, 634, 84 L.Ed. 864; Helvering v. Clifford, 309 U.S. 331, 334, 60 S.Ct. 554, 556, 84 L.Ed. 788; Helvering v. Midland Mutual Life Ins. Co., 300 U.S. 216, 223, 57 S.Ct. 423, 425, 81 L.Ed. 612; United States v. Safety Car Heating & Lighting Co., 297 U.S. 88, 93, 56 S.Ct. 353, 356, 80 L.Ed. 500; Douglas v. Willcuts, 296 U.S. 1, 9, 56 S.Ct. 59, 62, 80 L.Ed. 3; Helvering v. Stockholms Enskilda Bank, 293 U.S. 84, 89, 55 S.Ct. 50, 52, 79 L.Ed. 211; Bowers v. Kerbaugh-Empire Co., 271 U.S. 170, 174, 46 S.Ct. 449, 451, 70 L.Ed. 886; Irwin v. Gavit, 268 U.S. 161, 166, 45 S.Ct. 475, 476, 69 L.Ed. 897; Eisner v. Macomber, 252 U.S. 189, 203, 40 S.Ct. 189, 192, 64 L.Ed. 521. The scope of § 22(a) in some instances is limited by specific provisions, e.g., § 22(b)(9) (income from discharge of indebtedness), § 22(b)(13) (compensation of members of armed forces), but no such provisions apply here.
1
In opposing certain anti-theft legislation, Attorney General Mitchell wrote Senator Norris that, '* * * The machinery now provided by the Federal Government for the prosecution and punishment of crime is overtaxed.
'Earnest efforts are being made to devise methods for the relief of those Federal courts which are congested and to increase the capacity of our prisons to satisfy present requirements. Until we have dealt adequately with the troubles which now confront us we ought not to be adding to the burden of the law-enforcement machinery by enacting legislation of this kind.' 72 Cong.Rec. 6214. Along this line, it has been said that, 'It will be a long time before the few hundred agents of the Department of Justice can expand enough to do the work now given to 130,000 peace officers in the United States * * *.' Broad Program Needed for Crime Control, 20 J.An.Jud.Soc. 196, 200.
2
In 1950 and 1951, the Senate Crime Committee conducted investigations of organized crime. In its Third Interim Report the Committee stated, 'Any program for controlling organized crime must take into account the fundamental nature of our governmental system. The enforcement of the criminal law is primarily a State and local responsibility.' S.Rep.No.307, 82d Cong., 1st Sess. 5.
3
Commenting on this fact, Attorney General Mitchell said, 'Experience has shown that when Congress enacts criminal legislation of this type the tendency is for the State authorities to cease their efforts toward punishing the offenders and to leave it to the Federal authorities and the Federal courts. That has been the experience under the Dyer Act.' 72 Cong.Rec. 6214. See also Boudin, The Place of the Anti-Racketeering Act in our Constitutional-Legal System, 28 Cornell L.Q. 261, 270 et seq.
United States v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314, held that a defendant could be subjected to federal prosecution for violation of federal prohibition laws despite the fact that he had already been convicted under New York law for the same conduct. New York's repeal of her prohibition laws six months later highlights the loss of state responsibility for enforcing the criminal law after the Federal Government has entered the field. N.Y.Laws 1923, c. 871.
4
See n. 5, infra.
5
Enforcement of all or some of these rules in the federal courts injects an element of uncertainty into criminal trials. Questions arise as to how much law of what state applies. Then the federal court must attempt to decide what the state law actually is and how it applies to the particular conduct alleged to be criminal. Moreover, an opportunity to obtain an authoritative decision on a matter of state law from the highest state court is denied. Thus all the uncertain problems involved in Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, are thrust upon those accused of crime in the federal courts. 'And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.' Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322.
6
The majority leave me in doubt as to whether the 'extortion' was a state or federal crime. See n. 5, supra.
| 01
|
343 U.S. 118
72 S.Ct. 585
96 L.Ed. 791
LYKESv.UNITED STATES.
No. 173.
Argued Nov. 29, 30, 1951.
Decided March 24, 1952.
Rehearing Denied April 28, 1952.
See 343 U.S. 937, 72 S.Ct. 768.
Mr. George W. Ericksen, Tampa, Fla., for petitioner.
Mr. Harry Baum, Washington, D.C., for respondent.
Mr. Justice BURTON delivered the opinion of the Court.
1
The question here is whether, for federal income tax purposes, an individual taxpayer was entitled to deduct from his gross income, an attorney's fee paid for contesting the amount of his federal gift tax. For the reasons hereafter stated we hold that he was not.
2
In 1940, Joseph T. Lykes, petitioner herein, gave to his wife and to each of his three children, respectively, 250 shares of common stock in Lykes Brothers, Inc., a closely held family corporation. In his federal gift tax return he valued the shares at $120 each and, on that basis, paid a tax of $13,032.75. In 1944, the Commissioner of Internal Revenue revalued the shares at $915.50 each and notified petitioner of a gift tax deficiency of $145,276.50. Through his attorney, petitioner sought a redetermination of the deficiency, forestalled an assessment, and, in 1946, paid $15,612.75 in settlement of the deficiency pursuant to a finding of the Tax Court based on stipulated facts. In 1944, petitioner had paid his attorney $7,263.83 for legal services in the gift tax controversy but, in his federal income tax return, had not deducted that expenditure from his taxable income. In 1946, he claimed a tax refund on the ground that the attorney's fee should have been deducted under § 23(a)(2) of the Internal Revenue Code.1 His claim was denied by the Commissioner and petitioner sued for a refund. On stipulated and uncontroverted facts the District Court held, as a matter of law, that the payment should have been deducted and entered judgment for petitioner. 84 F.Supp. 537.2 The Court of Appeals reversed. 5 Cir., 188 F.2d 964. Because of the important statutory issue involved and petitioner's claim that this case is distinguishable from Cobb v. Commissioner, 6 Cir., 173 F.2d 711, we granted certiorari. 342 U.S. 810, 72 S.Ct. 48, 96 L.Ed.—.
3
I. Deductions from an individual's taxable income are limited to those allowed by § 23.3 This extent depends upon the legislative policy expressed in the fair and natural meaning of that section.4
4
Section 24 adds that in 'computing net income no deduction shall in any case be allowed in respect of—(1) Personal, living, or family expenses * * *.' 53 Stat. 16, 56 Stat. 826, 26 U.S.C. § 24(a)(1), 26 U.S.C.A. § 24(a)(1). Insofar as gifts to members of a donor's family are in the nature of personal or family expenses, the donor's expenditures for accounting, legal or other services incurred in making those gifts are of a like nature. The non-deductibility of such expenditures, therefore, is indicated both by the absence of any affirmative allowance of their deductibility under § 23 and by the express denial of the deductibility of all personal or family expenses under § 24.
5
If the expenditure in the instant case had been made before 1942, it is clear that it would not have been deductible. At that time § 23 permitted an individual to deduct 'ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business. * * *.' (Emphasis supplied.) 53 Stat. 12, 26 U.S.C. (1940 ed.) § 23(a)(1), 26 U.S.C.A. § 23(a) (1). It made no mention of nontrade or nonbusiness expenses. Accordingly, in Higgins v. Commissioner, 312 U.S. 212, 61 S.Ct. 475, 85 L.Ed. 783, when this Court held that expenses incurred by an individual taxpayer in looking after his own incomeproducing securities were not expenses 'incurred * * * in carrying on any trade or business,' it also held that they were not deductible.5
6
To change that result, Congress, in 1942, added the present § 23(a)(2).6 That provision, as demonstrated in its legislative history, permits the deduction of some, but not all, of the nontrade and nonbusiness expenses of an individual taxpayer. It specifies those paid or incurred (1) 'for the production or collection of income' or (2) 'for the management, conservation, or maintenance of property held for the production of income.' See H.R.Rep.No.2333, 77th Cong., 2d Sess.7 Congress might have gone further. However, neither the decision that occasioned the amendment, the Committee Reports on it, nor the language adopted in it indicate that Congress sought to make such a change of policy as would authorize widespread deductibility of personal, living or family expenditures in the face of § 24(a)(1). Bingham's Trust v. Commissioner, 325 U.S. 365, 374, 65 S.Ct. 1232, 1237, 89 L.Ed. 1670; McDonald v. Commissioner, 323 U.S. 57, 61—63, 65 S.Ct. 96, 97—98, 89 L.Ed. 68.
7
Inasmuch as the ordinary and necessary character of the legal expenses incurred in the instant case is not questioned, their deductibility turns wholly upon the nature of the activities to which they relate.8 The first issue, therefore, is whether petitioner's gifts, and the legal expenses related to them, were made for the 'production or collection of income' within the meaning of § 23(a)(2). Generally a gift is the antithesis of such production or collection because it reduces the donor's resources whether income producing or not. However, petitioner suggests that although he stated in his gift tax return that the purpose of his gifts was to express his love for the donees, yet the gifts were part of a general plan to produce income for himself. In support of this, he points out that the gifts consisted of 1,000 shares of stock in a closely held family corporation of which he is the president and in which he retained personal ownership of about 2,000 like shares, and that one of the donees, his son, is now actively identified with the corporation and is one of its directors.9 The District Court did not find that these facts, or anything else in the record, provided an adequate basis for reclassifying petitioner's stock transfers and his payment of a related legal fee as expenditures for the production of income, rather than as gifts accompanied by an ordinary and necessary attorney's fee for contesting the amount of a federal gift tax treating the stock transfers as gifts. The Court of Appeals, on review of the entire record, expressly held that the transfers were gifts and that the attorney's fee was not proximately related to the production of income. That court then applied to the attorney's fee the interpretation of § 23(a)(2) approved in Cobb v. Commissioner, supra. We agree to the applicability of that interpretation which disallows the fee as a deduction from taxable income.10
8
Similarly, there is no substantial factual basis here for treating the stock transfers and the related attorney's fee as mere incidents of petitioner's 'management, conservation, or maintenance of property held for the production of income.' Even assuming that petitioner's 3,000 shares in Lakes Brothers, Inc., did constitute property originally held by him for the production of income, there is no finding, and no adequate basis for a finding, that his donation of one-third of that stock actually was not the gift he represented it to be. Petitioner does not claim that the gift itself is deductible and, if it, as the principal item in the transaction is not deductible, we find no adequate basis in this record for holding the related attorney's fee deductible.
9
II. Legal expenses do not become deductible merely because they are paid for services which relieve a taxpayer of liability. That argument would carry us too far. It would mean that the expense of defending almost any claim would be deductible by a taxpayer on the ground that such defense was made to help him keep clear of liens whatever income-producing property he might have. For example, it suggests that the expense of defending an action based upon personal injuries caused by a taxpayer's negligence while driving an automobile for pleasure should be deductible. Section 23(a)(2) never has been so interpreted by us. It has been applied to expenses on the basis of their immediate purposes rather than upon the basis of the remote contributions they might make to the conservation of a taxpayer's income-producing assets by reducing his general liabilities. See McDonald v. Commissioner, supra, 323 U.S. at pages 62—63, 65 S.Ct. at page 98.
10
While the threatened deficiency assessment of nearly $150,000 added urgency to petitioner's resistance of it, neither its size nor its urgency determined its character. It related to the tax payable on petitioner's gifts, as gifts, and it was finally settled on an agreed revaluation of the securities constituting those gifts. The expense of contesting the amount of the deficiency was thus at all times attributable to the gifts, as such, and accordingly was not deductible.
11
If, as suggested, the relative size of each claim, in proportion to the income-producing resources of a defendant, were to be a touchstone of the deductibility of the expense of resisting the claim, substantial uncertainty and inequity would inhere in the rule. For example, the expense of defending a personal injury suit for negligence, or a suit for alienation of affections, claiming $1,000 damages, probably would not be a deductible expense for any defendant. On the other hand, if the same plaintiff on the same facts asked for $5,000, $10,000 or $100,000 damages, and the defendant held some income-producing property, that defendant might be permitted to deduct from his taxable income the same expense for precisely the same services as those upon which his less well-to-do neighbor would have to pay a tax in the other case. It is not a ground for defense that the claim, if justified, will consume income-producing property of the defendant. We find no such distinction made or implied in the Revenue Act.
12
III. While the Treasury Regulations, in 1944, did not refer to the issue now before us, they were consistent with the position we have taken.11 Furthermore, since 1946, T.D. 5513, 26 CFR § 29.23(a)—15(k), has unequivocally stated that legal expenses incurred by an individual in the determination of gift tax liability are not deductible. That interpretation of § 23(a)(2) appears in the following language: 'Expenses paid or incurred by an individual in determining or contesting any liability asserted against him do not become deductible * * * by reason of the fact that property held by him for the production of income may be required to be used or sold for the purpose of satisfying such liability. Thus, expenses paid or incurred by an individual in the determination of gift tax liability, except to the extent that such expenses are allocable to interest on a refund of gift taxes, are not deductible, even though property held by him for the production of income must be sold to satisfy an assessment for such tax liability or even though, in the event of a claim for refund, the amount received will be held by him for the production of income.' (Emphasis supplied.)
13
Such a regulation is entitled to substantial weight. See Commissioner v. South Texas Co., 333 U.S. 496, 501, 68 S.Ct. 695, 698, 92 L.Ed. 831; Morrissey v. Commissioner, 296 U.S. 344, 355, 56 S.Ct. 289, 294, 80 L.Ed. 263; Fawcus Machine Co. v. United States, 282 U.S. 375, 378, 51 S.Ct. 144, 145, 75 L.Ed. 397. Since the publication of that Treasury Decision, Congress has made many amendments to the Internal Revenue Code without revising this administrative interpretation of § 23(a)(2). See Revenue Act of 1948, c. 168, 62 Stat. 110; Revenue Act of 1950, c. 994, 64 Stat. 906; Revenue Act of 1951, c. 521, 65 Stat. 452; Higgins v. Commissioner, supra, 312 U.S. at page 216, 61 S.Ct. at page 477; Morrissey v. Commissioner, supra, 296 U.S. at page 345, 56 S.Ct. at page 294.
14
The judgment of the Court of Appeals accordingly is affirmed.
15
Affirmed.
16
Mr. Justice BLACK dissents.
17
Mr. Justice JACKSON, whom Mr. Justice FRANKFURTER joins, dissenting.
18
Lykes made a gift of corporate stock to his children. It was a legitimate transaction, duly reported for gift-tax purposes and a tax of over $13,000 paid thereon. By overvaluing the stock which had been given, the Commissioner asserted a gift-tax deficiency of $145,276.50, of which about $130,000 was found by the Tax Court to be unjustified. But, to protect himself against the Government's unjustified claim, Lykes spent $7,263.83 for legal services.
19
I am unable to understand why this payment was not deductible as being an expense incurred 'for the management, conservation, or maintenance of property held for the production of income.' Had the taxpayer yielded to the Government's unjustified demand, it would have depleted his capital by about $130,000 and thenceforward he could not have enjoyed income from it. Of course, it is not the amount but the principle that is significant. Indeed, the burden of legal expense is likely to be in inverse proportion to the amount of the deficiency asserted. Here the expense was only about 5% of the saving. In small cases of small taxpayers the percentage will be far greater and in many may exceed 100%. Certainly contest against unwarranted exaction, regardless of its amount or outcome, is for the conservation of property and its reasonable cost is dedictible.
20
A majority of my brethren seem to think they can escape this conclusion by going further back in the chain of causation. They say the cause of this legal expense was the gift. Of course one can reason, as my brethren do, that if there had been no gifts there would have been no tax, if there had been no tax there would have been no deficiency, if there were no deficiency there would have been no contest, if there were no contest there would have been no expense. And so the gifts caused the expense. The fallacy of such logic is that it would be just as possible to employ it to prove that the lawyer's fees were caused by having children. If there had been no children there would have been no gift, and if no gift no tax, and if no tax no deficiency, and if no deficiency no contest, and if no contest no expense. Hence, the lawyer's fee was not due to the contest at all but was a part of the cost of having babies. If this reasoning were presented by a taxpayer to avoid a tax, what would we say of it? So treacherous is this kind of reasoning that in most fields the law rests its conclusion only on proximate cause and declines to follow the winding trail of remote and multiple causations.
21
As for the Treasury Regulation, I would not give it one bit of weight. The Treasury may feel that it is good public policy to discourage taxpayers from contesting its unjustified demands for taxes and thus justify penalizing resistance. It is hard to imagine any instance in which the Treasury could have a stronger self-interest in its regulation. I cannot put my finger on a case where we have said that this reason would avoid Treasury Regulations. But we have disregarded them when they were not consistent with the statute, and that seems to be the case here. I think Congress allows a taxpayer to protect his estate, even against the Treasury. It seems to me a tacit slander of the Nation's credit that need for money should drive us to such casuistry as this.
1
'§ 23. Deductions from gross income.
'In computing net income there shall be allowed as deductions:
'(a) Expenses
'(2) Non-trade or non-business expenses. In the case of an individual, all the ordinary and necessary expenses paid or incurred during the taxable year for the production or collection of income, or for the management, conservation, or maintenance of property held for the production of income.' (Emphasis supplied.) 53 Stat. 12, 56 Stat. 819, 26 U.S.C. § 23(a)(2), 26 U.S.C.A. § 23(a)(2).
2
'To construe the law as giving to the Commissioner the power to assess a taxpayer with a deficiency tax greatly in excess of what he owes and to hold that such law denies to the taxpayer the right to contest such assessment, except at his own personal expense, just isn't justice under the law. The statute in question gives the Commissioner no such power * * *.' 84 F.Supp. 537, 539.
3
The tax is 'levied, collected, and paid for each taxable year upon the net income of every individual * * *.' 53 Stat. 5, 26 U.S.C. § 11, 26 U.S.C.A. § 11. 'Net income' means the gross income computed under section 22, less the deductions allowed by section 23.' 53 Stat. 9, 26 U.S.C. § 21, 26 U.S.C.A. § 21.
4
There have been expressions by this Court placing a restrictive interpretation upon allowable deductions by virtue of 'the now familiar rule that an income tax deduction is a matter of legislative grace and that the burden of clearly showing the right to the claimed deduction is on the taxpayer.' Interstate Transit Lines v. Commissioner, 319 U.S. 590, 593, 63 S.Ct. 1279, 1281, 87 L.Ed. 1607; Deputy v. Du Pont, 308 U.S. 488, 493, 60 S.Ct. 363, 366, 84 L.Ed. 416; New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440, 54 S.Ct. 788, 790, 78 L.Ed. 1348. Such an interpretation is not necessary here and is not relied upon in this case. See Griswold, An Argument against the Doctrine that Deductions Should Be Narrowly Construed as a Matter of Legislative Grace, 56 Harv.L.Rev. 1142.
5
And see United States v. Pyne, 313 U.S. 127, 61 S.Ct. 893, 85 L.Ed. 1231 (attorney's fees and other expenses of executors in caring for securities and investments not deductible); City Bank Farmers Trust Co. v. Helvering, 313 U.S. 121, 61 S.Ct. 896, 85 L.Ed. 1227 (similar expenses of testamentary trustee not deductible); Van Wart v. Commissioner, 295 U.S. 112, 55 S.Ct. 660, 79 L.Ed. 1336 (attorney's fee for litigation to recover income for a ward not deductible).
6
See note 1, supra.
7
'* * * Due partly to the inadequacy of the statute and partly to court decisions, nontrade or nonbusiness expenses are not deductible, although nontrade or nonbusiness income is fully subject to tax. The bill corrects this inequity by allowing all of the ordinary and necessary expenses paid or incurred for the production or collection of income or for the management, conservation or maintenance of property held for the production of income. Thus, whether or not the expense is in connection with the taxpayer's trade or business, if it is expended in the pursuit of income or in connection with property held for the production of income, it is allowable.
'* * * The expenses, however, of carrying on a transaction which does not constitute a trade or business of the taxpayer and is not carried on for the production of income or for the management, conservation, or maintenance of property, but which is carried on primarily as a sport, hobby, or recreation are not allowable as nontrade or nonbusiness expenses.
'Expenses, to be deductible under section 23(a)(2), must be ordinary and necessary, which rule presupposes that they must be reasonable in amount and must bear a reasonable and proximate relation to the production or collection of income, or to the management, conservation, or maintenance of property held for that purpose.
'A deduction under this section is subject, except for the requirement of being incurred in connection with a trade or business, to all the restrictions and limitations that apply in the case of the deduction under section 23(a)(1) (A) of an expense paid or incurred in carrying on any trade or business.' Id., at 46, 75. To the same effect, see S.Rep.No.1631, 77th Cong., 2d Sess., at 87—88.
8
For cases resulting in the nondeductibility of legal expenses, see e.g., Croker v. Burnet, 61 App.D.C. 342, 62 F.2d 991 (en banc) (defending suit to have taxpayer's husband declared incompetent and to set aside his transfer of property to taxpayer); Dickey v. Commissioner, 14 B.T.A. 1295 (defense against suit for malicious prosecution); Joyce v. Commissioner, 3 B.T.A. 393 (defense of validity of postnuptial agreement); Oransky v. Commissioner, 1 B.T.A. 1239 (defense and settlement of action for death due to negligence of taxpayer's minor son using taxpayer's automobile). See Kornhauser v. United States, 276 U.S. 145, 48 S.Ct. 219, 72 L.Ed. 505, for an example of legal expenses held deductible as business expenditures rather than personal ones.
9
The record shows that the corporation was organized in 1910 by petitioner's elder brothers and was originally engaged in the cattle, ranching and meat packing business. Later it engaged in extensive steamship and stevedoring operations through a subsidiary. While it was a large enterprise with numerous stockholders besides petitioner, his wife and children, the stock never had been on the open market. It was held by sons, nephews and sons-in-law of the Lykes brothers. It was the practice of the brothers to foster in this way a continuity of family ownership and management. At the time of petitioner's gift of 1,000 shares of common stock, there were outstanding about 25,000 shares of that class of stock.
10
The issue here is distinguishable from that in Bingham's Trust v. Commissioner, supra. In that case the legal expenses were incurred partly in contesting an income tax deficiency assessed against the taxpaying trust and partly in winding up the trust after its expiration. All of those expenses were integral parts of the management or conservation of the trust property for the production of income and, as such, deductible under § 23(a)(2).
11
Treas.Reg. 111, § 29.23(a)—15(b).
| 1112
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343 U.S. 112
72 S.Ct. 581
96 L.Ed. 786
BRUNERv.UNITED STATES.
No. 391.
Argued Jan. 30, 1952.
Decided March 24, 1952.
Mr. Denmark Groover, Jr., Macon, Ga., for petitioner.
Mr. James R. Browning, Sp. Asst. to the Atty. Gen., for respondent.
Mr. Chief Justice VINSON delivered the opinion of the Court.
1
In 1941, petitioner was appointed a civilian fire chief at Camp Wheeler, Georgia, by a local army commander acting under authority delegated by the Secretary of War. In 1948, petitioner brought this action in the District Court to recover overtime compensation allegedly due for his services as fire chief. Jurisdiction to enter judgment against the United States was based on the Tucker Act which granted to the District Court jurisdiction, concurrent with the Court of Claims, over certain civil actions against the United States.1
2
At the time this action was commenced, Congress had provided that nothing in the Tucker Act shall be construed as giving the District Court—'jurisdiction of cases brought to recover fees, salary, or compensation for official services of officers of the United States or brought for such purpose by persons claiming as such officers or as assignees or legal representatives thereof; but no suit pending on the 27th day of June, 1898 shall abate or be affected by this provision.'2 The District Court, holding that petitioner was an 'officer of the United States,' entered judgment dismissing petitioner's complaint for want of jurisdiction. The Court of Appeals for the Fifth Circuit affirmed. 189 F.2d 255.
3
In Beal v. United States, 1950, 182 F.2d 565, the Court of Appeals for the Sixth Circuit sustained jurisdiction of the District Court over a suit brought by another civilian fire fighter appointed by the War Department on the ground that he was only an 'employee' and not an 'officer of the United States.' We granted certiorari in the case at bar to resolve the conflict of decisions. 342 U.S. 858, 72 S.Ct. 89.
4
After certiorari had been granted in this case, the Act of October 31, 1951, Pub.L. No. 248, became effective. Section 50(b) of that Act amended the applicable clause of the Judicial Code 'by inserting, immediately after 'officers' in such clause, the words 'or employees' * * *.'3 As a result of this amendment we are confronted at the threshold of this case with the question whether the Act of October 31, 1951, withdrawing the jurisdiction of the District Court over actions for compensation brought by 'employees,' applies to an action pending on the effective date of the Act. The power of Congress to withhold jurisdiction from the District Court 'in the exact degrees and character which to Congress may seem proper for the public good'4 is not challenged.
5
The problem presented by this case has arisen before in the administration of the Tucker Act. In 1887, jurisdiction concurrent with the Court of Claims was given the circuit and district courts in all cases involving claims below stated dollar amounts. In 1898, difficulties in defending claims for compensation brought in different courts prompted Congress to withdraw from the circuit and district courts jurisdiction over cases 'brought to recover fees, salary, or compensation for official services of officers of the United States * * *,'5 thereby centralizing all such cases in the Court of Claims. Congress made no provision for cases pending at the effective date of the Act withdrawing jurisdiction and, for this reason, Courts of Appeals ordered pending cases terminated for want of jurisdiction. United States v. McCrory, 5 Cir. 1899, 91 F. 295; United States v. Kelly, 9 Cir. 1899, 97 F. 460. Thereafter, Congress restored the jurisdiction of the circuit and district courts to consider cases pending on the date that jurisdiction had been withdrawn.6
6
The Act of October 31, 1951, withdrawing the jurisdiction of the District Court over suits by 'employees,' did not reserve jurisdiction over pending cases,7 even though reservation of jurisdiction over pending cases had been held required and later had been made by Congress in respect to the 1898 provisions withdrawing jurisdiction over suits by 'officers.' Absent such a reservation, only the Court of Claims has jurisdiction to hear and determine claims for compensation brought by employees of the United States even though the District Court had jurisdiction over such claims when petitioner's action was brought. Merchants' Insurance Co. v. Ritchie, 1867, 5 Wall. 541, 18 L.Ed. 540.
7
In Ritchie, a case arising under the internal revenue laws, jurisdiction was based upon an Act of 1833 granting the circuit courts jurisdiction over all cases arising under the revenue laws. After decision in the Circuit Court and while an appeal to this Court was pending, an Act of 1866 withdrew the jurisdiction of the circuit courts over cases arising under the internal revenue laws, without any reservation saving cases such as Ritchie's. This Court held:
8
'It is clear, that when the jurisdiction of a cause depends upon a statute the repeal of the statute takes away the jurisdiction. And it is equally clear, that where a jurisdiction, conferred by statute, is prohibited by a subsequent statute, the prohibition is, so far, a repeal of the statute conferring the jurisdiction.
9
'It is quite possible that this effect of the act of 1866 was not contemplated by Congress. The jurisdiction given by the act of 1833 in cases arising under the customs revenue laws is not taken away or affected by it. In these cases suits may still be maintained against collectors by citizens of the same State. It is certainly difficult to perceive a reason for discrimination between such suits and suits under the internal revenue laws; but when terms are unambiguous we may not speculate on probabilities of intention.' 5 Wall. at pages 544—545, 18 L.Ed. 540.
10
In another case arising under the same jurisdictional statutes, the Court, in following Ritchie, stated the applicable rule as follows: 'Jurisdiction in such cases was conferred by an act of Congress, and when that act of Congress was repealed the power to exercise such jurisdiction was withdrawn, and inasmuch as th repealing act contained no saving clause, all pending actions fell, as the jurisdiction depended entirely upon the act of Congress.' The Assessors v. Osbornes, 1870, 9 Wall. 567, 575, 19 L.Ed. 748. This rule—that, when a law conferring jurisdiction is repealed without any reservation as to pending cases, all cases fall with the law—has been adhered to consistently by this Court.8
11
This case is not affected by the so-called general savings statute which provides that 'repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute.'9 Congress has not altered the nature or validity of petitioner's rights or the Government's liability but has simply reduced the number of tribunals authorized to hear and determine such rights and liabilities. Hallowell v. Commons, 1916, 239 U.S. 506, 508, 36 S.Ct. 202, 203, 60 L.Ed. 409. Compare Lynch v. United States, 1934, 292 U.S. 571, 54 S.Ct. 840, 78 L.Ed. 1434.
12
Under the Judicial Code, as amended by the Act of October 31, 1951, the jurisdiction of the District Court does not extend to actions for compensation brought by either 'officers' or 'employees' of the United States. Since we find that Act applicable to petitioner's action, the judgment of the District Court dismissing petitioner's complaint for want of jurisdiction is correct. Accordingly, the judgment below is affirmed.
13
Affirmed.
14
Mr. Justice BLACK and Mr. Justice DOUGLAS dissent.
1
24 Stat. 505 (1887), now 28 U.S.C. (Supp. IV) § 1346, 28 U.S.C.A. § 1346.
2
30 Stat. 494, 495 (1898), as amended, 28 U.S.C. § 41(20). As incorporated into the 1948 revision of the Judicial Code, the provision read:
'The district courts shall not have jurisdiction under this section of:** a
'(2) Any civil action to recover fees, salary, or compensation for official services of officers of the United States.' 28 U.S.C.(Supp. IV) § 1346(d), 28 U.S.C.A. § 1346(d).
3
65 Stat. 710, 727 (1951).
4
Lockerty v. Phillips, 1943, 319 U.S. 182, 187, 63 S.Ct. 1019, 1022, 87 L.Ed. 1339; Cary v. Curtis, 1845, 3 How, 236, 245, 11 L.Ed. 576.
5
30 Stat. 494, 495 (1898). See H.R.Rep.No.325, 55th Cong., 2d Sess. (1898).
6
31 Stat. 33 (1900).
7
No mention of pending cases is found in the Act. In § 56(l) of the same Act, Congress expressly saved 'any rights or liabilities' existing at the effective date of the Act under statutes repealed by § 56. 65 Stat. 710, 730 (1951), 18 U.S.C.A. § 3051 note.
8
Ex parte McCardle, 1869, 7 Wall. 506, 514, 19 L.Ed. 264; Baltimore & P. Railroad Co. v. Grant, 1879, 98 U.S. 398, 401, 25 L.Ed. 231; Sherman v. Grinnell, 1887, 123 U.S. 679, 680, 8 S.Ct. 260, 261, 31 L.Ed. 278; Gurnee v. Patrick County, 1890, 137 U.S. 141, 144, 11 S.Ct. 34, 35, 34 L.Ed. 601; Gwin v. United States, 1902, 184 U.S. 669, 675, 22 S.Ct. 526, 529, 46 L.Ed. 741. See Kline v. Burke Const. Co., 1922, 260 U.S. 226, 234, 43 S.Ct. 79, 82, 67 L.Ed. 226.
This jurisdictional rule does not affect the general principle that a statute is not to be given retroactive effect unless such construction is required by explicit language or by necessary implication. Compare United States v. St. Louis, S.F. & T.R. Co., 1926, 270 U.S. 1, 3, 46 S.Ct. 182, 183, 70 L.Ed. 435, with Smallwood v. Gallardo, 1927, 275 U.S. 56, 61, 48 S.Ct. 23, 72 L.Ed. 152.
9
1 U.S.C. (Supp. IV) § 109, 1 U.S.C.A. § 109. United States. Since we find that Act applicable
| 89
|
343 U.S. 148
72 S.Ct. 568
96 L.Ed. 846
UNITED STATESv.HOOD et al.
No. 426.
Argued March 4, 1952.
Decided March 31, 1952.
Mr. Philip Elman, Washington, D.C., for appellant.
W. S. Henley, Jackson, Miss., Robert W. Thompson, Jr., Gulfport, Miss., Albert Sidney Johnston, Jr., Biloxi, Miss., Ben F. Cameron, Meridian, Miss., for appellees.
Opinion of the Court by Mr. Justice FRANKFURTER, announced by THE CHIEF JUSTICE.
1
The defendants were charged in the District Court for the Southern District of Mississippi with a conspiracy to violate 18 U.S.C. § 215, 18 U.S.C.A. § 215, and numerous substantive violations of the same section. The law provides: 'Whoever solicits or receives, either as a political contribution, or for personal emolument, any money or thing of value, in consideration of the promise of support or use of influence in obtaining for any person any appointive office or place under the United States, shall be fined not more than $1,000 or imprisoned not more than one year, or both.1'
2
The indictment charged a conspiracy to solicit contributions to the Mississippi Democratic Committee and to the defendants personally in return for promises to use influence to obtain for the contributors appointments in the Post Office Department and in the Office of Price Stabilization. Other counts of the indictment charged substantive violations. Material here are counts 31, 32, and 33 charging the solicitation by two of the defendants of three $300 political contributions from named individuals in return for the promise of support and influence on behalf of the contributors to secure for them appointments as Chairmen of the County Ration Boards of Pike, Amite and Lawrence counties, respectively. It is stipulated that no such offices were in existence at the time of the solicitation or at any time thereafter up to the return of the indictment. Authority to create such offices, however, had been granted to the President, well before the violations charged, by the Defense Production Act of 1950, 64 Stat. 798, 807, 50 U.S.C.App., Supp. IV, § 2103, 50 U.S.C.A.Appendix, § 2103.
3
Defendants successfully moved to dismiss these portions of the indictment on the ground that the statute did not make criminal the sale of non-existent offices or of influence in connection with appointments to them. The District Court also ordered stricken the references in the conspiracy count to the offices of Chairmen of County Ration Boards. The order of dismissal was appealed by the Government under the Criminal Appeals Act, 18 U.S.C. § 3731, 18 U.S.C.A. § 3731. Our jurisdiction in such cases is limited to the construction of the statute involved.
4
We think the District Court was wrong. The statute is plainly broad enough on its face to cover the sale of influence in connection with an office which had been authorized by law and which, at the time of the sale, might reasonably be expected to be established. That was the situation here and we do not have to go further to say whether the words will cover the sale of an office which is purely the creature of the seller's fancy.
5
The evil at which the statute is directed is the operation of purchased, and thus improper, influence in determining the occupants of federal office. But in attacking that evil, Congress outlawed not the use of such influence, but the solicitation of its purchase, the peddling of the forbidden wares. As is not uncommon in criminal legislation, Congress, in order to strike at the root, made the scope of the statute wider than the immediate evil. Even judges need not be blind to the fact of political life the it helps in influencing political appointments to be forehanded with a recommendation before an office is formally created. Certainly it was not unreal for Congress to believe that the sale of influence in anticipation of jobs was equally damaging to the proper operation of the federal service and to take steps to prevent it. It did so in this Act. Nothing has been suggested, either by the sparse legislative history or by prior judicial construction,2 to restrain us from giving effect to the obvious, ordinary reading of the statute. It is pressed upon us that criminal statutes are to be strictly construed. But this does not mean that such legislation 'must be construed by some artificial and conventional rule'. United States v. Union Supply Co., 215 U.S. 50, 55, 30 S.Ct. 15, 16, 54 L.Ed. 87. We should not read such laws so as to put in what is not readily found there. But equally we should not read out what as a matter of ordinary English speech is in.
6
This Act penalized corruption. It is no less corrupt to sell an office one may never be able to deliver than to sell one he can. Dealing in futures also discredits the processes of government. There is no indication that this statute punishes delivery of the fruit of the forbidden transaction—it forbids the sale. The sale is what is here alleged. Whether the corrupt transaction would or could ever be performed is immaterial. We find no basis for allowing a breach of warranty to be a defense to corruption.
7
Our construction of the statute does not offend the requirement of definiteness. The picture of the unsuspecting influence merchant, steering a careful course between violation of the statute on the one hand and obtaining money by false pretenses on the other by confining himself to the sale of non-existent but plausible offices, entrapped by the dubieties of this statute, is not one to commend itself to reason.
8
The judgment below is reversed and the case remanded for further proceedings.
9
Reversed.
10
Mr. Justice BLACK, with whom Mr. Justice REED, Mr. Justice DOUGLAS and Mr. Justice MINTON concur, dissenting.
11
18 U.S.C. § 215, 18 U.S.C.A. § 215, makes it a crime to solicit or receive political contributions on the basis of a promise to help 'any person' obtain 'any appointive office or place under the United States * * *.' The Government argues that this statute makes it criminal to promise to help someone get an 'office or place' even though there is no such office or place in existence. Apparently sensing that such an extraordinary expansion of this criminal statute might not be accepted, the Government argues for a lesser expansion sufficient to include an 'office or place' if there is a 'substantial possibility' that it may be 'set up in the near future.' The Court's construction is apparently the same although there are slight verbal variations. It reads the statute as punishing promises made to use 'influence in connection with an office which had been authorized by law and which, at the time of the sale, might reasonably be expected to be established.' The words used in this statute convey no such meaning to me. I think that any person reading the words 'office or place' would immediately think of them as applying to an actual, existing 'office or place'. This surely would be a fair construction of the language used, and I think it is the construction that should be compelled in connection with this criminal statute. It requires considerable straining to say that Congress 'plainly and unmistakably', United States v. Gradwell, 243 U.S. 476, 485, 37 S.Ct. 407, 411, 61 L.Ed. 857, made it a crime to use influence in connection with an 'office or place' that did not exist. See United States v. Halseth, 342 U.S. 277, 72 S.Ct. 275. As a matter of fact, the 'reasonably to be expected' office or place here talked about was not only nonexistent at the time the alleged promise was made—it has not been 'set up' yet. We should not stretch this statute to cover conduct which is not prohibited on the theory that Congress would have done so had it thought about it. United States v. Weitzel, 246 U.S. 533, 543, 38 S.Ct. 381, 382, 62 L.Ed. 872; McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 341, 75 L.Ed. 816; Pierce v. United States, 314 U.S. 306, 62 S.Ct. 237, 86 L.Ed. 226.
1
The statute was revised and amended in 1951 in respects not material here. 65 Stat. 320.
2
Only one reported case has construed the statute. Hoeppel v. United States, 66 App.D.C. 71, 85 F.2d 237. It dealt with a question unrelated to this case.
| 78
|
343 U.S. 154
72 S.Ct. 598
96 L.Ed. 852
RAYv.BLAIR.
No. 649.
Argued March 31, 1952.
Decided April 3, 1952.
Subsequent Opinion April 15, 1952.
See 343 U.S. 214, 72 S.Ct. 654.
Messrs. Marx Leva, Washington, D.C., Harold M. Cook, Birmingham, Ala., for petitioner.
Mr. Horace C. Wilkinson, Birmingham, Ala., for respondent.
PER CURIAM.
1
In this proceeding, an Alabama circuit court entered an order directing petitioner to certify to the Secretary of State of Alabama the name of respondent as a candidate for nomination for Presidential and Vice-Presidential elector in the primary election of the Democratic Party to be held on May 6, 1952. The Alabama Supreme Court affirmed on the single ground that the order was compelled by Article II, Section 1 and the Twelfth Amendment of the United States Constitution.
2
Petitioner applied to this Court for a stay of the judgments and mandates of the Alabama courts and filed a petition for writ of certiorari to review the judgment of the Alabama Supreme Court. On March 24, 1952, we granted certiorari and ordered the judgments and mandates of the courts below stayed pending further consideration and disposition of the case by this Court. The case was assigned for argument on the stay as well as the merits on March 31, 1952. 343 U.S. 901, 72 S.Ct. 637.
3
The question raised in this case has been thoroughly briefed and argued. The Court has fully considered the question and has reached its conclusion. It now announces its decision and enters its judgment in advance of the preparation of a full opinion which, when prepared, will be filed with the Clerk. See 343 U.S. 214, 72 S.Ct. 654.
4
The Court holds that Article II, Section 1 and the Twelfth Amendment of the Constitution do not compel issuance of the order and judgment entered below.
5
The judgment below is reversed. The mandate of this Court is directed to issue forthwith.
6
Reversed.
7
Mr. Justice DOUGLAS and Mr. Justice JACKSON dissent.
8
Mr. Justice BLACK and Mr. Justice FRANKFURTER took no part in the consideration or decision of this case.
| 12
|
343 U.S. 156
72 S.Ct. 611
96 L.Ed. 853
KAUFMAN et al.v.SOCIETE INTERNATIONALE POUR PARTICIPATIONS INDUSTRIELLES ET COMMERCIALES, S.A., et al.
No. 172.
Argued Jan. 2, 1952.
Decided April 7, 1952.
Mr. Irving Moskovitz, New York City, for petitioners.
Mr. David Schwartz, Washington, D.C., for respondents, mCgrath, et al.
Mr. John J. Wilson, Washington, D.C., for respondent, Societe Internationale etc.
Messrs. William P. MacCracken, Urban A. Lavery, and William W. Barron, all of Washington, D.C., for respondent, Remington Rand, Inc.
Mr. Justice BLACK delivered the opinion of the Court.
1
Acting under § 5(b) of the Trading with the Enemy Act,1 the Alien Property Custodian vested in himself the American assets of Interhandel, a Swiss corporation.2 Interhandel sued in the District Court to recover the assets. The Custodian3 answered alleging that the Swiss corporation was dominated and controlled by officers, agents, and stockholders who were engaged in a conspiracy with German nationals and with the German Government to operate the company's business in their interests while we were at war with Germany. Petitioners, United States citizens who own stock in Interhandel, filed a motion to intervene. They admitted the Custodian's charge that Interhandel was dominated by officers and stockholders who had been engaged in such a conspiracy. They also admitted the right of the Custodian to retain an interest in the seized assets proportional to the stock ownership of enemy stockholders. But petitioners contended that they and other nonenemy stockholders had claims in the corporate assets which it was the corporation's duty to protect. Alleging that the dominant enemy group which had charge of the suit would not press the corporate claim in a manner that would adequately protect the claims of innocent shareholders, petitioners asserted a right to intervene under Rule 24(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. The District Court denied the motion to intervene, 90 F.Supp. 1011, and the Court of Appeals affirmed, 88 U.S.App.D.C. 296, 188 F.2d 1017. Underlying the claimed right of petitioners to intervene is an important question of the power of the Alien Property Custodian under the Trading with the Enemy Act, namely: What part of the assets of a corporation organized under the laws of a neutral country may the Custodian retain where part of the corporate stock is owned by enemies, part by American citizens, and part by nonenemy aliens? This question was reserved in Clark v. Uebersee Finanz-Korp., 332 U.S. 480, 489—490, 68 S.Ct. 174, 178, 92 L.Ed. 880. To consider it we granted certiorari in this case. 342 U.S. 847, 72 S.Ct. 74, 96 L.Ed. —-.
2
First. Interhandel is a neutral corporation organized in Switzerland. Prior to 1941, even ownership of its stock and domination by enemy nationals would not have justified seizure of its assets. In order to reach the enemy interests in such neutral corporations, Congress amended the controlling Act in 1941. The background, scope and consequences of that amendment were discussed in Clark v. Uebersee Finanz-Korp., supra. We there held that the 1941 amendment authorized the Custodian to seize and vest in himself all property of any foreign country or national, even that of friendly or neutral nations. At the same time we refused to hold that the 1941 amendment deprived friendly or neutral nations or nationals of a right to have their assets returned if they could prove that they were free of any open or concealed enemy taint. The purpose of the amendment, we found, was 'not to appropriate friendly or neutral assets but to reach enemy interests which masqueraded under those innocent fronts.' Clark v. Uebersee Finanz-Korp., supra, 332 U.S. at page 485, 68 S.Ct. at page 176.
3
Thus, under the 1941 amendment the nonenemy character of a foreign corporation because it was organized in a friendly or neutral nation no longer conclusively determines that all interests in the corporation must be treated as friendly or neutral. The corporate veil can now be pierced. Enemy taint can be found if there are enemy officers or stockholders; even the presence of some nonenemy stockholders does not prevent seizure of all the corporate assets. But such a governmental seizure requires consideration of the plight of innocent stockholders. For as stated in the Uebersee case, the amendment does not contemplate appropriation of friendly or neutral assets. While Congress has clearly provided for forfeiture of enemy assets, it has used no language requiring us to hold that innocent interests must be confiscated because of the guilt of other stockholders. Nor does any legislative history pointed out persuade us that Congress intended to inflict such harsh consequences upon the innocent. We decline to read such a congressional purpose into the Act.
4
Our holding is that when the Government seizes assets of a corporation organized under the laws of a neutral country, the rights of innocent stockholders to an interest in the assets proportionate to their stock holdings must be fully protected. This holding is not based on any technical concept of derivative rights appropriate to the law of corporations. It is based on the Act which enables one not an enemy as defined in § 2 to recover any interest, right or title which he has in the property vested. The innocent stockholder may not have title to corporate assets, but he does an interest which Congress has indicated should not be confiscated merely because some others who have like interests are enemies.
5
Second. Section 9(a) of the Trading with the Enemy Act authorizes Interhandel to maintain this action for the recovery of all its assets because it has alleged that it is not enemy dominated. Alleging that they and others are nonenemy stockholders, petitioners charge that it is Interhandel's corporate duty to assert a claim for the return of their proportionate interests in the assets even though other stockholders who dominate the corporation are found to be enemies. Petitioners further allege that the corporate management refuses to assert such a claim, but continues to claim only a return of all assets on the theory that whatever return is obtained must be divided among enemy and nonenemy shareholders in proportion to their stock holdings. This position is taken, petitioners charge, because the suit is being controlled by the very stockholders on whose account the Custodian seized the property and whose interests will be worthless if they are found to be enemies. Petitioners allege that this enemy corporate management, fearing confiscation of its enemytainted interests, is about to settle the corporate claim with the Custodian for an amount less than the value of the nonenemy part of the assets. Should this be done, it is said the enemy management contemplates dividing the proceeds proportionately among enemy and nonenemy stockholders, thus violating the Act in two ways: (1) by depriving nonenemy stockholders of part of their property, and (2) by returning assets to foreign enemy stockholders.
6
A mere narration of the allegations shows that petitioners' fears are by no means fanciful. Indeed, the Government agrees with the dominant corporate management that the interests of enemy and nonenemy stockholders should be treated alike. The United States wishes to sell the entire assets of Interhandel. And it is argued that if nonenemy stockholders are to be given a chance in court (which right is challenged), they should be limited to individual suits for money judgments against the Custodian. Petitioners claim a proportional right or interest in the specific assets of Interhandel and that they may not be driven to accept their share of whatever price the Government may happen to get from a sale of these valuable assets. In order to play safe, petitioners have filed a separate suit in a Federal District Court. But we think the questions involved in disputes like this can be more appropriately resolved in the corporate actions authorized by § 9(a) than by resort to a multiplicity of separate actions. In such suits the nonenemy stockholder in his own right may assert his nonenemy character in order to protect his own interest from the enemy taint caused by other stockholders. Courts trying such corporate actions have adequate equitable power and procedural flexibility to protect all interests, even when the corporate recovery is not for the benefit of all stockholders but only for those who are nonenemies.
7
In view of our holding that Congress has recognized that nonenemy stockholders of nonenemy foreign corporations have a severable interest in corporate assets seized by the Custodian, it follows that the allegations of these petitioners entitle them to intervene. These allegations, if true, show that petitioners' interests may be inadequately represented and that they may be bound by a judgment in this corporate action. This brings the claim of intervention squarely within Rule 24(a)(2) of the Federal Rules of Civil Procedure.4
8
Reversed.
9
Mr. Justice CLARK took no part in the consideration or decision of this case.
10
Mr. Justice REED, with whom The CHIEF JUSTICE and Mr. Justice MINTON join, dissenting.
11
The Court holds that 'when the Government seizes assets of a corporation organized under the laws of a neutral country, the rights of innocent stockholders to an interest in the assets proportionate to their stock holdings must be fully protected.' Such a holding opens wide one door of escape from war damage claims of the United States and its citizens against foreign corporations, organized and controlled by enemies in neutral territory. As the opinion does not indicate whether the alleged nonenemy stockholder must bear the burden of proving his character, we assume that this burden rests on the claimant stockholder in an enemy-tainted corporation. Even so, the difficulty of rebutting an individual's self-serving evidence as to his neutrality is obvious. The war and prewar activities and connections of the many American and neutral residents, stockholders of neutral corporations engaged in world-wide dealings, are known largely only to the interested individual. The definition of 'enemy' in the Trading with the Enemy Act leaves innumerable paths for stockholders sheltered by the Court's decision to escape responsibility for the acts of the corporate agency that their investments have made powerful and efficient to undermine our security.1
12
Thus a national of an enemy nation, under Guessefeldt v. McGrath, 342 U.S. 308, 72 S.Ct. 338, 96 L.Ed. —-, may now recover, on his showing of his own nonenemy character, all his interest in the assets of vested enemy-dominated neutral corporations. Every dollar that may be drawn by nonenemies from the assets of an enemy-dominated corporation reduces the sums available for national and individual indemnification for war damage.2 As the objective of the Trading with the Enemy Act is not only the sterilization of funds against enemy use during war but also the creation of a reparation pool of enemy and enemy-tainted assets for indemnification of war injuries, such diminutions imperil the purposes of the Act. Cf. Propper v. Clark, 337 U.S. 472, 484, 69 S.Ct. 1333, 1340, 93 L.Ed. 1480.
II.
13
The Court's holding permits foreign sympathizers, residents of the United States or neutral territory, not covered by the definition of enemies, to avoid sacrifice in war of their financial interests through the trite scheme of investment in neutral corporations, controlled and used by our enemies for our defeat. If the question of the rights of a nonenemy stockholder were at issue in Uebersee Finanz-Korporation v. McGrath, 343 U.S. 205, 72 S.Ct. 618, that nonenemy stockholder, under the Court's opinion in this case, would recover his proportion of the corporation assets, despite the fact that Uebersee 'owned all the stock of a subsidiary Hungarian corporation engaged in the mining of bauxite in Hungary, and in 1939 and 1940 guaranteed a loan by a Swiss bank to this corporation for its operations. The loan was repaid in November 1942. The United States was at war with Hungary from December 13, 1941. During October, November, and December 1941, the Hungarian corporation shipped bauxite to Germany and had a contract to do so until the end of 1942.' 343 U.S. 205, 209—210, 72 S.Ct. 620.
14
At one time this Nation allowed such easy escape from the penalties of war, relying upon the ownership of corporate stock for protection.3 Behn, Meyer & Co. v. Miller, 266 U.S. 457, 45 S.Ct. 165, 69 L.Ed. 374, demonstrated the futility of such a method of protection. It was to plug this loophole that the Congress enacted in 1941 the existing § 5(b) of the Trading with the Enemy Act, authorizing the President to vest 'any property or interest of any foreign country or national thereof'.4 It surely was not the purpose of Congress to leave the door halfway open.
III.
15
The Court's holding disregards the normal incidents of corporate responsibility and frustrates the purpose of Congress to repair the gap in our defense policy toward alien property pointed out by our Behn-Meyer decision. The Uebersee case did not decide the issue here presented. It left open the effect of enemy ownership of minor interest in a foreign corporation but it would hardly have been thought until today that Uebersee left open the fate of the property of an enemy-dominated corporation, which corporation was part of a scheme, as shown in n. 2, 'to avoid seizure and confiscation in the event of war.'5 Congress has indicated its attitude quite clearly.6 Today's ruling cuts deeply into the congressional purpose to hold the property of enemy-tainted foreign corporations for satisfaction of war claims.
16
The result reached by the Court is brought about by a disregard of the ordinary incidents of the relation of a stockholder to a corporation. A stockholder has no present interest in the physical property of an unliquidated corporation. The corporation is responsible for the acts of the corporation.7 The stockholder normally is not. By his contribution to capital and his participation in profits, he puts his investment at risk, according to the conduct of the corporation. He may have claims against management but those claims have nothing to do with corporate assets subject to the demands of creditors or governments. Those corporate assets grow or diminish because of corporate, not shareholder, conduct.8 Surely, if a corporation violated the Sherman Act, 15 U.S.C.A. §§ 1—7, 15 note, its assets would be subject to the triple-damage claims of wronged competitors, even to its last cent and to the detriment of stockholders who may have protested vehemently but ineffectively against the illegal course of conduct. Surely a corporate deed of the corporation's 'interest, right, or title' to a piece of property would not leave in a stockholder any interest adverse to the grantee.
17
The Court finds justification for allowing a stockholder to sue in the language of § 9; the Court says the holding 'is based on the Act which enables one not an enemy as defined in § 2 to recover any interest, right or title which he has in the property vested.' No authority is cited for the proposition that a stockholder has an 'interest,' within the meaning of the Act, in the physical assets of the corporation, separate from the interest of the corporation. Corporations may recover on showing their nonenemy character, just as individuals may, but the corporate entity should not be disregarded without some evidence of such congressional intention. The language of § 9, 'interest * * * in (the) property * * * seized', could not normally be taken to mean a stockholder's interest in the administration and profits of the corporation;9 in our opinion it means an interest in the assets actually seized. There is no indication that Congress intended that the mere vesting of the corporate assets by the Attorney General should confer upon each stockholder an enforceable interest in those assets.
18
Where the corporation subjects its assets to forfeiture by aiding our enemies, the corporation should pay the penalty. The friendly stockholder should not be permitted by strained statutory interpretation to withdraw his contribution to the funds that were used to our injury and so reduce the assets available for war claimants. We see no real difference, as to liability to have assets vested under the Trading with the Enemy Act, between a corporation enemy-dominated as this is alleged to be and an enemy-domiciled corporation producing munitions of war for use against the United States. The Court's opinion refers only to enemy-dominated neutral corporations but the theory of recovery for friendly stockholders appears to be equally applicable to friendly stockholders of enemy corporations.
19
The Court of Appeals should be affirmed.
1
40 Stat. 411, 50 U.S.C.App. § 1 et seq., 50 U.S.C.A.Appendix, § 1 et seq., as amended by the First War Powers Act of 1941, 55 Stat. 839, 50 U.S.C.App. (Supp. V) § 5(b), 50 U.S.C.A.Appendix, § 5(b).
2
Although the corporation is commonly called 'Interhandel,' its full legal name is Societe Internationale Pour Participations Industrielles et Commerciales S.A., etc. The American assets consisted of bank accounts and over 90% of the capital stock in the General Aniline & Film Corporation of Delaware, all of the assets apparently being valued at more than $100,000,000.00.
3
In 1946, the Attorney General succeeded to the powers and duties of the Alien Property Custodian. Exec. Order No. 9788, 11 Fed.Reg. 11981, 50 U.S.C.A.Appendix, § 6 note.
4
'Upon timely application anyone shall be permitted to intervene in an action: * * * (2) when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action; * * *.' See Sutphen Estates, Inc. v. United States, 342 U.S. 19, 72 S.Ct. 14, 96 L.Ed. —-.
1
50 U.S.C.App. § 2, 50 U.S.C.A.Appendix, § 2:
'The word 'enemy,' as used herein, shall be deemed to mean, for the purposes of such trading and of this Act—
'(a) Any individual, partnership, or other body of individuals, of any nationality, resident within the territory (including that occupied by the military and naval forces) of any nation with which the United States is at war, or resident outside the United States and doing business within such territory, and any corporation incorporated within such territory of any nation with which the United States is at war or incorporated within any country other than the United States and doing business within such territory.'
2
It is alleged by the United States that the conspiracy of which the respondent Societe was a part had for its objective 'to conceal, camouflage and cloak the ownership, control, and domination by I. G. Farben of properties and interests in many countries of the world, including the United States, other than Germany. Among the various purposes and objectives of the said conspiracy were to assist I. G. Farben:
'(e) To conceal, camouflage and cloak the ownership, control and domination by I. G. Farben of properties and interests located in countries, including the United States, other than Germany, in order to avoid seizure and confiscation in the event of war between such countries and Germany.'
The Societe alleges that it 'is the owner of 2,050,000 shares of the Common B stock, and 455,448 shares of the Common A stock, of General Aniline & Film Corporation, of a value in excess of One Hundred Million Dollars ($100,000,000),' now at stake.
3
Hamburg-American Co. v. United States, 277 U.S. 138, 140, 48 S.Ct. 470, 471, 72 L.Ed. 822.
4
Clark v. Uebersee Finanz-Korporation, 332 U.S. 480, 483, 68 S.Ct. 174, 175, 92 L.Ed. 880. See note 3, 332 U.S. at page 485, 68 S.Ct. 176, describing the maze of corporate schemes for enemy control of war economy.
5
332 U.S. at pages 489—490, 68 S.Ct. at page 178: 'It is suggested, however, that this approach may produce results which are both absurd and uncertain. It is said that the entire property of a corporation would be jeopardized merely because a negligible stock interest, perhaps a single share, was directly or indirectly owned or controlled by an enemy or ally of an enemy. It is also pointed out that securities or interests other than stock might be held by an enemy or ally of an enemy and used effectively in economic warfare against this country. But what these interests are, the extent of holdings necessary to constitute an enemy taint, what part of a friendly alien corporation's property may be retained where only a fractional enemy ownership appears, are left undecided. Since we assume from the allegations of the complaint that respondent is free of enemy taint and therefore is not within the definition of enemy or ally of an enemy, those problems are not now before us. We recognize their importance; but they must await legislative or judicial clarification.'
6
50 U.S.C.App. § 32, 50 U.S.C.A.Appendix, § 32:
'The President, or such officer or agency as he may designate, may return any property or interest vested in or transferred to the Alien
Property Custodian * * * whenever the President or such officer or agency shall determine—
'(2) that such owner, and legal representative or successor in interest, if any, are not—
'(E) a foreign corporation or association which at any time after December 7, 1941, was controlled or 50 per centum or more of the stock of which was owned by any person or persons ineligible to receive a return under subdivisions (A), (B), (C), or (D) hereof: * * *.'
(A), (B), (C) and (D) refer substantially to national, corporate or individual enemies.
7
Cook, Corporations (8th ed.), vol. I, § 11; vol. III, §§ 663, 664.
8
Christopher v. Brusselback, 302 U.S. 500, 503, 58 S.Ct. 350, 352, 82 L.Ed. 388: 'A stockholder is so far an integral part of the corporation of which he is a member, that he may be bound and his rights foreclosed by
authorized corporate action taken without his knowledge or participation. * * *' See Pink v. AAA Highway Express, 314 U.S. 201, 207, 62 S.Ct. 241, 245, 86 L.Ed. 152.
Anderson v. Abbott, 321 U.S. 349, 361, 64 S.Ct. 531, 537, 88 L.Ed. 793: 'Some shareholders of Banco claim the right to rescind their purchases of its shares on the ground of misrepresentations in the sale. But whether or not such relief might be granted in some instances, it seems clear that Banco's stockholders are bound by the decisions of the directors which determined, within the scope of the corporate charter, the kind and quality of the corporate undertaking.'
9
In the analogous law of prize, it is settled that the nonenemy stockholders of an enemy corporation have no right to recover any portion of seized property which was owned by the corporation. The Polzeath, (1916) P. 241, 256 (C.A.), affirming (1916) P. 117: '* * * the British shareholders are not entitled to intervene. It is suggested that the ship should be appraised, and that payment should be made to the British shareholders in proportion to their holdings. The Court has no such power; it cannot administer the affairs of the company. If any hardship is caused to innocent shareholders by the
declaration of forfeiture their position is that they can only appeal to the merciful consideration of the Crown.'
Steamship 'Marie Glaeser,' 1 Lloyd's Prize Cases 56, 111 (1914):
'Now, with regard to the shareholders in the vessel, it is quite clear that if they are enemy shareholders their property must go with the capture of the vessel in which they have put their money—a vessel sailing under the flag of the enemy. Not only is that so with regard to shareholders who might be citizens of the German Empire, but it is equally so if some of those shareholders happened to be, as they may be—I do not know—persons who are citizens of this country. If a shareholder invests his money by taking shares in a vessel which is liable to capture, he takes that risk.
'If in the case of a British shareholder he likes to present his case to the Crown as one which ought to be leniently dealt with, that is another matter. I have nothing to do with that. I am here only to administer the law, and I must hold that no shareholders have any right whatsoever to be protected from the results of the capture of this vessel.'
Standard Oil Tankers Case, Arbitration Award, Aug. 5, 1926, II Foreign Relations of the United States, 1926, p. 166. Cf. The Pedro, 175 U.S. 354, 367—368, 20 S.Ct. 138, 142—143, 44 L.Ed. 195.
| 34
|
343 U.S. 181
72 S.Ct. 599
96 L.Ed. 872
STROBLEv.STATE OF CALIFORNIA.
No. 373.
Argued March 6, 1952.
Decided April 7, 1952.
Rehearing Denied May 12, 1952.
See 343 U.S. 952, 72 S.Ct. 1039.
[Syllabus from pages 181-182 intentionally omitted]
Messrs. John D. Gray, A. L. Wirin, Los Angeles, Cal., for petitioner.
Mr. Adolph Alexander, Los Angeles, Cal., for respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
Petitioner has been convicted of first degree murder and sentenced to death. He asks this Court to reverse his conviction as wanting in that due process of law guaranteed against state encroachment by the Fourteenth Amendment. Petitioner claims (1) that his conviction was based in part on a coerced confession; (2) that a fair trial was impossible because of inflammatory newspaper reports inspired by the District Attorney; (3) that he was in effect deprived of counsel in the course of his sanity hearing; (4) that there was an unwarranted delay in his arraignment; and (5) that the prosecuting officers unjustifiably refused to permit an attorney to consult petitioner shortly after petitioner's arrest. Petitioner urges that each of the first three circumstances is independently a deprivation of due process; and that, in any event, the combination of all five circumstances operated to deprive him of a fair trial.
2
The murder of which petitioner has been convicted occurred on Monday, November 14, 1949; the victim was a girl, aged 6. Petitioner was arrested around noon on Thursday, November 17, 1949. He was arraigned in the Los Angeles Municipal Court at 10 o'clock the following morning, and the City Public Defender was appointed to represent him. A preliminary hearing was held on Monday, November 21, and petitioner was bound over for trial in the Superior Court of Los Angeles County. On November 25, petitioner was arraigned in the Superior Court and the County Public Defender was appointed as his counsel. From that point until the conclusion of his trial, petitioner was vigorously defended by two deputies of the County Public Defender's office. On December 2, 1949, petitioner pleaded both 'not guilty' and 'not guilty by reason of insanity.' The case came on for trial on January 3, 1950. The issue of guilt was tried to a jury, which, on January 19, returned a verdict of guilty of first degree murder, without recommendation; under California law, this automatically fixed the penalty at death. On January 20, 1950, petitioner waived jury trial on he issue of insanity, and the court found that petitioner was sane at the time of committing the offense. On January 27, 1950, on petitioner's motion, a private attorney was substituted as petitioner's counsel. On February 6, 1950, the trial court, after a hearing, denied petitioner's motion for a new trial, motion in arrest of judgment, and motion to set aside the waiver of jury trial on the issue of insanity.
3
On appeal the Supreme Court of California unanimously affirmed the conviction. People v. Stroble, 36 Cal.2d 615, 226 P.2d 330. We granted certiorari because of the seriousness of petitioner's allegations under the Due Process Clause. 342 U.S. 811, 72 S.Ct. 57.
4
The facts leading to petitioner's arrest may be summarized as follows:
5
In the early morning of November 15, 1949, the victim's body was found behind the incinerator in the back yard of the home of petitioner's daughter and son-in-law. It was wrapped in a blanket and covered with boxes. A necktie was wound twice around the child's neck. An axe, knife, and hammer were found in the vicinity of the body. An autopsy revealed that the immediate cause of death was asphyxia due to strangulation. It also revealed numerous lacerations on the top and sides of the head, six skull fractures, a deep laceration in the back of the neck, abrasions and discolorations on the child's back, irritation of the external genitalia, and three puncture wounds in the chest.
6
Suspicion immediately focused on petitioner, who had been visiting his daughter and son-in-law until the day before, when he had disppeared. Some six months before petitioner had jumped bail on a charge of molesting a small girl and had never since been apprehended. At approximately 11:50 a.m. on November 17, as petitioner entered the bar of a restaurant in downtown Los Angeles, a civilian recognized him as the man whom the police were seeking in connection with the murder. The civilian summoned a police officer, Carlson, who thereupon arrested petitioner.
7
From this point on there are some conflicts in the testimony, as noted below. Carlson, accompanied by the civilian, took petitioner to the park foreman's office in nearby Pershing Square, where Carlson called headquarters to report his arrest of petitioner and to request that a police car be sent. Then Carlson, in the presence of the civilian and the park foreman, proceeded to search petitioner. Carlson had petitioner stand facing the wall with his hands raised against it and his feet away from it. While being searched in this position, petitioner pulled his feet closer to the wall and then Carlson, with the side of his shoe, kicked petitioner's shoes at the toes in order to push petitioner's feet back into position. The civilian testified that 'possibly' Carlson's foot slipped and hit petitioner's shin 'once or twice.' Carlson testified that at no time did he 'strike' petitioner or 'inflict any kind of physical injury on him.'1 No marks were found on petitioner when he was examined by a physician a few hours later. It also appears that after searching petitioner, Carlson took out his blackjack, held it under petitioner's nose, and said either, Do you know what this is for?' or 'Have you seen this?' Petitioner makes no claim that Carlson used the blackjack on him. While waiting for the police car to arrive the civilian asked petitioner whether he was guilty of the murder, and petitioner 'mumbled something under his breath that sounded like 'I guess I am." Thereupon, according to the civilian, the park foreman slapped petitioner with his open hand and knocked off petitioner's glasses.
8
Without undue delay the police car arrived and petitioner was driven to the District Attorney's office in the Hall of Justice Building. While en route one of the police officers in the car began a conversation with petitioner by asking him where he had been. Petitioner replied, 'Well, after that terrible thing happened, I went down to the beach, down to Ocean Park. I was going to do away with myself.' The officer said, 'What do you mean by that terrible thing?' to which petitioner replied, 'When the little girl got killed.' The officer then interposed, 'Do you mean when you killed the little girl?' and petitioner answered, 'Yes. I was going down to the beach. I was going to jump in the ocean and commit suicide but I decided that I would have to pay on the other side so I might as well come back and pay on this side.' The officer testified that he did not promise petitioner any reward or extend to him any hope of immunity, and that he did not use force or threats of any kind. The officer's entire testimony regarding this conversation is uncontradicted, and, insofar as it contains a confession by petitioner, no objection was made at the trial on the ground that such confession was involuntary.
9
Petitioner did object at the trial, however, to the introduction in evidence of a confession which he made after his arrival in the District Attorney's office. Petitioner was brought to the District Attorney's office at approximately 1 p.m., and an assistant district attorney began questioning petitioner in the presence of some nineteen persons, attache_s of the District Attorney and the police department. The entire proceeding was recorded on a recording machine which had been set in operation before petitioner's arrival. Petitioner stated that on the afternoon of November 14, his victim came to the home of petitioner's daughter, where petitioner was visiting; he took his victim into the bedroom and made advances upon her; when she began to scream, he became frightened, got hold of her throat, and squeezed it until she became quiet; she started to squirm again, so he took a necktie from the dresser and tied it around her neck; when she continued to move, he took her off the bed, wrapped her in a blanket, and hit her on the temple with a hammer which he had obtained from the kitchen drawer; he then dragged her across the back yard to the incinerator, returned to the kitchen to get an ice pick, and pushed the pick into her three times in an effort to reach her heart; next he got an axe from the garage and hit her on the head and backbone; finally he got a knife from the kitchen and stabbed her in the back of the neck, covered her body with boxes, and left for Ocean Park, a beach resort within the city of Los Angeles, where he remained for the three nights before his apprehension.
10
Towards the end of the recording petitioner stated that the officers had not threatened or abused him in any way, either in the park foreman's office or the District Attorney's office. The recording disclosed no mistreatment at the time of the making of the confession.
11
The questioning of petitioner in the District Attorney's office lasted approximately two hours. About 45 minutes after petitioner had begun his confession, an attorney, Mr. Gray, called at the waiting room of the District Attorney's office and asked for the assistants handling the case. Upon being advised that they were busy he then asked for the District Attorney. Upon being told that the District Attorney was also in conference and could not be disturbed, Mr. Gray asked to see petitioner. It is uncontradicted that at that point Mr. Gray stated to a police department inspector who was present in the waiting room that he 'just wanted to hear from (petitioner's) lips whether or not' petitioner had committed the murder, 'so that (he) could report back' to petitioner's son-in-law.2 Mr. Gray was denied admission to the room in which petitioner was being questioned, but talked to an assistant district attorney after the confession had been completed. Mr. Gray was permitted to see petitioner that evening. Mr. Gray did not represent petitioner during the trial, but on the motion for new trial was substituted, at petitioner's request, for the Public Defender.
12
Shortly after 3 p.m., petitioner was taken from the District Attorney's office to Dr. Marcus Crahan, a physician in charge of the hospital of the county jail, for a physical and mental examination. Dr. Crahan, when called by petitioner as a witness at the trial, testified that he examined petitioner carefully, including his feet and shins, but found no bruises or abrasions of any kind. According to Dr. Crahan, during the examination petitioner stated that since his arrest the police officers had been very kind to him and that he had not been 'mistreated' and had been given 'every consideration.' Petitioner related to Dr. Crahan the details of the killing.
13
Petitioner was lodged in the county jail for the night and was arraigned in the Municipal Court at 10 o'clock the following morning, November 18.
14
Thereafter, in the six weeks' period between the date of his arraignment and the beginning of his trial, petitioner was examined by four psychiatrists3 and one clinical psychologist. To each of these persons he stated that he had killed his victim and recounted, in greater or lesser detail, just how he had gone about the killing. These experts, when testifying at the trial (two having been called by the prosecution and three by the petitioner), related to the jury what petitioner had told them. Petitioner did not object at the time, and makes no objection now, to the admission of these confessions on the ground that they were involuntary.
15
The trial court charged the jury that it could not consider a confession unless it was voluntary; that the jury was the sole judge of voluntariness; and that a confession was not voluntary when obtained by any kind of violence, abuse, or threat, or by 'ny coaxing, cajoling, or menacing influence which induces in the mind of the defendant the belief or hope that he will gain some advantage by making a confession.' The court further charged that the fact that a confession is made while an accused is under arrest and being detained, or when he is not represented by counsel, or without his having been told that any statement he makes may be used against him, does not in itself make the confession involuntary, but is one circumstance to be considered in determining the voluntariness of the confession. The court admonished the jury to view with caution the testimony of any witness which purports to relate an oral confession by a defendant.
16
The California Supreme Court stated: 'We may assume, that as a matter of law under the circumstances shown,' petitioner's confession in the District Attorney's office was involuntary.4 The court felt, however, that the use of that confession 'could not have affected the fairness of (petitioner's) trial,' because petitioner 'thereafter made at least five confessions, of materially similar substance and unquestioned admissibility, which were put in evidence', and because '(i)t does not appear that the outcome of the trial would have differed' if that confession had been excluded.5 Therefore the court concluded that use of the confession had not deprived petitioner of due process.
17
We take a somewhat different view. If the confession which petitioner made in the District Attorney's office was in fact involuntary, the conviction cannot stand, even though the evidence apart from that confession might have been sufficient to sustain the jury's verdict. Malinski v. New York, 1945, 324 U.S. 401, 402, 404, 65 S.Ct. 781, 782, 783, 89 L.Ed. 1029; Lyons v. Oklahoma, 1944, 322 U.S. 596, 597 note 1, 64 S.Ct. 1208, 1210, 88 L.Ed. 1481. That confession was a prominent feature of the trial. First a stenographic transcript of the confession was read, and then a wire recording of it was played to the jury. Under these circumstances we cannot say that the jury's verdict could not have been based, at least in part, on the confession made in the District Attorney's office. Since we take this view, we cannot merely 'assume,' as did the state supreme court, that that confession was involuntary, but must go on to determine the question of voluntariness.
18
Petitioner does not so much as suggest that the action of any officer during the taking of the confession was accompanied by force or threats. His sole contention is that the incidents in the park foreman's office, coupled with the presence of nineteen officers in the District Attorney's office, render the confession which he made in the latter office involuntary.
19
This Court frequently stated that, when faced with the question whether there has been a violation of the Due Process Clause of the Fourteenth Amendment by the introduction of an involuntary confession, it must make an independent determination on the undisputed facts. Malinski v. New York, supra, 324 U.S. at page 404, 65 S.Ct. 783, and cases cited; 324 U.S. at page 438, 65 S.Ct. 798 (dissenting opinion). We adhere to that rule. In the present case, however, we need not confine ourselves to the undisputed facts; for, even if we give petitioner the benefit of every doubt as to the alleged coercion, we do not think it can fairly be said that his confession in the District Attorney's office was coercion's product. Whatever occurred in the park foreman's office occurred at least an hour before he began his confession in the District Attorney's office, and was not accompanied by any demand that petitioner implicate himself. Likewise his statement to the officer while on the way to the District Attorney's office was admittedly voluntary. In the District Attorney's office, petitioner answered questions readily; there was none of the 'pressure of unrelenting interrogation' which this Court condemned in Watts v. Indiana, 1949, 338 U.S. 49, 54, 69 S.Ct. 1347, 1350, 93 L.Ed. 1801. Indeed, the record shows that from the time of his arrest until the time of his trial, petitioner was anxious to confess to anybody who would listen—and as much so after he had consulted with counsel as before. His willingness to confess to the doctors who examined him, after he had been arraigned and counsel had been appointed, and in circumstances free of coercion, suggests strongly that petitioner had concluded, quite independently of any duress by the police, 'that it was wise to make a clean breast of his guilt'. See Lyons v. Oklahoma, supra, 322 U.S. at page 604, 64 S.Ct. at page 1213. In the light of all these circumstances, we are unable to say that petitioner's confession in the District Attorney's office was the result of coercion, either physical or psychological.
20
We turn now to petitioner's contention that the newspaper accounts of his arrest and confession were so inflammatory as to make a fair trial in the Los Angeles area impossible—even though a period of six weeks intervened between the day of his arrest and confession and the beginning of his trial. Here we are not faced with any question as to the permissible scope of newspaper comment regarding pending litigation, see Bridges v. California, 1941, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192; Pennekamp v. Florida, 1946, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295; Craig v. Harney, 1947, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546; but with the question whether newspaper accounts aroused such prejudice in the community that petitioner's trial was 'fatally infected' with an absence of 'that fundamental fairness essential to the very concept of justice.' Lisenba v. California, 1941, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166.
21
The search for and apprehension of petitioner was attended by much newspaper publicity. Between the time of the murder and the time of petitioner's arrest, newspapers of general circulation in the Los Angeles area featured in banner headines the 'manhunt' which the police were conducting for petitioner. On the day of petitioner's arrest these newspapers printed extensive excerpts from his confession in the District Attorney's office, the details of the confession having been released to the press by the District Attorney at periodic intervals while petitioner was giving the confession. On the following Monday, four days later, Los Angeles newspapers reprinted the full text of that confession as it was read into the record at the preliminary hearing. Most of these events were given top billing on the front page of the papers, and were accompanied by large headlines. Petitioner was variously described, both in headlines and in the text of news stories, as a 'werewolf,' a 'fiend,' a 'sex-mad killer,' and the like. The District Attorney announced to the press his belief that petitioner was guilty and sane.
22
The spate of newspaper publicity accompanying petitioner's arrest and confession soon abated, however. During the month of December, 1949, petitioner made the headlines of Los Angeles newspapers only infrequently, such as when he entered a plea of 'not guilty' on December 2. Petitioner points to certain other events which occurred during that month. The Governor of the State called a special session of the legislature to consider, among other things, the problem of 'sex crimes'; the Governor called a one-day conference of law enforcement officers to consider the same subject; a committee of the state legislature investigating sex crimes held hearings in Los Angeles, at which the District Attorney stated that he did not see why sex offenders 'shouldn't he disposed of the same way' as mad dogs; and various citizens' groups made proposals for studying and dealing with sex crimes. Los Angeles newspapers published accounts of each of these events, and the accounts at times made reference to the murder with which petitioner was charged.
23
Petitioner's trial itself was reported by Los Angeles newspapers, usually on inside pages. Petitioner makes no objection to this phase of the newspaper coverage except for the newspapers' occasional reference to petitioner as a 'werewolf.'
24
While we may deprecate the action of the District Attorney in releasing to the press, on the day of petitioner's arrest, certain details of the confession which petitioner made, we find that the transcript of that confession was read into the record at the preliminary hearing in the Municipal Court on November 21, four days later. Thus in any event the confession would have become available to the press at that time, for '(w)hat transpires in the court room is public property.' Craig v. Harney, supra, 331 U.S. at page 374, 67 S.Ct. at page 1254. Petitioner has not shown how the publication of a portion of that confession four days earlier prejudiced the jury in arriving at their verdict two months thereafter.
25
We agree with the California Supreme Court that petitioner has failed to show that the newspaper accounts aroused against him such prejudice in the community as to 'necessarily prevent a fair trial', Lisenba v. California, supra, 314 U.S. at page 236, 62 S.Ct. at page 290. At the outset, it should be noted that at no point did petitioner move for a change of venue, although the California Penal Code explicitly provides that whenever 'a fair and impartial trial cannot be had in the county' in which a criminal action is pending, the action may, upon motion of the defendant, be removed to 'the proper court of some convenient county free from a like objection.'6 Of course petitioner's failure to make such a motion is not dispositive of the issue here, since the state court did not decide against petitioner on this ground but rather rejected on the merits his federal constitutional claim.7 But, in an effort to determine whether there was public hysteria or widespread community prejudice against petitioner at the time of his trial, we think it significant that two deputy public defenders who were vigorous in petitioner's defense throughout the trial, saw no occasion to seek a transfer of the action to another county on the ground that prejudicial newspaper accounts had made it impossible for petitioner to obtain a fair trial in the Superior Court of Los Angeles County.
26
The matter of prejudicial newspaper accounts was first brought to the trial court's attention after petitioner's conviction, as one of the grounds in support of a motion for a new trial. At that time petitioner's present attorney urged that petitioner had been 'deprived of the presumption of innocence by the premature release by the District Attorney's office of the details of the confession,' and offered in support of that allegation certain Los Angeles newspapers published at the time of petitioner's arrest. The trial court replied as follows: '(T)he jurors were all thoroughly examined and all definitely stated that they would give to the defendant the benefit of the presumption of innocence. * * * There is nothing to show those jurors ever saw those papers or ever read those papers. They were fully examined so far as defense counsel desired as to any knowledge or information they might have of the case.'8
27
Petitioner does not challenge this statement of the court. Indeed, at no stage of the proceedings has petitioner offered so much as an affidavit to prove that any juror was in fact prejudiced by the newspaper stories. He asks this Court simply to read those stories and then to declare, over the contrary finding of two state courts, that they necessarily deprived him of due process. That we cannot do, at least where, as here, the inflammatory newspaper accounts appeared approximately six weeks before the beginning of petitioner's trial, and there is no affirmative showing that any community prejudice ever existed or in any way affected the deliberation of the jury. It is also significant that in this case the confession which was one of the most prominent features of the newspaper accounts was made voluntarily and was introduced in evidence at the trial itself.
28
We find no substance in petitioner's contention that he was deprived of effective counsel at a critical point in the case, namely, when he waived trial by jury on the issue of insanity. The attorney who consulted with petitioner as to whether he should make such a waiver was the Public Defender himself, although prior to that time two deputy public defenders had handled the case in court. The Public Defender took this action because the trial court, at the conclusion of the trial on the issue of guilt, had requested that he personally attend the trial on the insanity issue.9 We fail to see how this action harmed petitioner. As the California Supreme Court found, the Public Defender 'was familiar with the case, having read the daily transcript and consulted with and advised (his two deputies) and interviewed witnesses during the trial';10 moreover, before consulting with petitioner on the waiver question, he discussed the matter with his two deputies. Thereafter, petitioner twice stated in open court, in reply to inquiries by the trial judge, that he wished to waive a jury trial on the issue of insanity. Furthermore, there was no real question as to petitioner's sanity. He introduced no additional evidence at the sanity hearing; instead the parties stipulated that the sole evidence would be that adduced at the trial on the issue of guilt, plus the complete reports of the psychiatrists who had testified at that trial.11 Every psychiatrist who had testified, whether on behalf of petitioner or on behalf of the prosecution, had reached the conclusion that petitioner was sane. On the motion for new trial, when petitioner's present attorney sought to set aside the waiver of jury trial on the issue of insanity, he offered no new evidence relating to petitioner's mental state and did not indicate that any such evidence was available. We conclude that petitioner received the full assistance of competent counsel in deciding that he wanted the insanity issue tried to the court. On that question, as on all others, he has been afforded 'the assistance of zealous and earnest counsel from arraignment to final argument in this Court.' Avery v. Alabama, 1940, 308 U.S. 444, 450, 60 S.Ct. 321, 324, 84 L.Ed. 377.12
29
Nor can we agree with petitioner that a combination of these grounds with other circumstances, namely, unwarranted delay in arraignment and refusal to permit counsel to consult petitioner during the making of the confession, amounts to such unfairness as to deny due process. The arraignment was had within less than twenty-four hours after the arrest. The officials questioned petitioner only during the two-hour period in the District Attorney's office, described above. The remainder of that afternoon was devoted to a physical and mental examination, to which petitioner makes no objection. Counsel called on petitioner at the county jail at 9:30 p.m. the evening of the arrest; presumably petitioner remained alone from then until the time of his arraignment the following morning. Although the California Supreme Court found that the failure promptly to arraign petitioner before a committing magistrate was a violation of state law,13 that is not determinative of the issue before us. When this Court is asked to reverse a state court conviction as wanting in due process, illegal acts of state officials prior to trial are relevant only as they bear on petitioner's contention that he has been deprived of a fair trial, either through the use of a coerced confession or otherwise. Lisenba v. California, supra, 314 U.S. at page 234, 235, 240, 62 S.Ct. 288, 289, 291; Lyons v. Oklahoma, supra, 322 U.S. at page 597, note 2, 64 S.Ct. 1210; Gallegos v. Nebraska, 1951, 342 U.S. 55, 59, 65, 72 S.Ct. 141, 144, 147. Upon the facts of this case, we cannot hold that the illegal conduct of the law enforcement officers in not taking petitioner promptly before a committing magistrate, coerced the confession which he made in the District Attorney's office or in any other way deprived him of a fair and impartial trial.
30
As to the refusal of the prosecutors to admit counsel during their interrogation of petitioner, counsel stated that he had come to the District Attorney's office at the request of petitioner's son-in-law merely to inquire of petitioner as to his guilt. At no point did petitioner himself ask for counsel. In light of these facts, the District Attorney's refusal to interrupt the examination of petitioner, which had been proceeding for almost an hour, so that counsel could make inquiry for petitioner's son-in-law, does not constitute a deprivation of due process, either independently or in conjunction with all other circumstances in this case. While district attorneys should always honor a request of counsel for an interview with a client, upon the record before us there is no showing of prejudice. As was said in Adams v. United States ex rel. McCann, 1942, 317 U.S. 269, 281, 63 S.Ct. 236, 242, 87 L.Ed. 268: 'If the result of the adjudicatory process is not to be set at naught, it is not asking too much that the burden of showing essential unfairness be sustained by him who claims such injustice and seeks to have the result set aside, and that it be sustained not as a matter of speculation but as a demonstrable reality.'
31
The judgment of the Supreme Court of California is affirmed.
32
Affirmed.
33
The Supreme Court of California thus formulated the issue and indicated its conception of the allowable standards of fairness under the Due Process Clause:
34
'Defendant claims that he was deprived of a fair trial because the trial court did not protect him from, and the district attorney fostered, 'public pressure.' The killing and the subsequent search for defendant received much publicity. Immediately after defendant's arrest he was taken to the office of the district attorney, interrogated, and confessed. The district attorney, even before defendant completed his statement, released to the press details of the statement (including defendant's admissions of sex play with his victim and other children on occasions prior to the killing) and also announced his belief that defendant was guilty and sane. At the time of defendant's arrest and at the time of his trial (which began some 7 weeks later) there was notorious widespread public excitement, sensationally exploited by newspaper, radio and television, concerning crimes against children and defendant's crime in particular. In these circumstances, defendant urges, it was impossible for him to obtain an unbiased jury, and due process requires a new trial even though there is no showing that any juror was actually influenced by the sensational publicity and the popular hysteria.
35
'In connection with his claim of 'public pressure' defendant also calls attention to the following statement by one of his counsel (veteran deputy public defender John J. Hill; defendant was not then represented by his present private counsel) made during his closing argument: 'I wish to make this commentary with reference to just what has occurred before the Court took the Bench. I refer to the televising and the pictures taken of the jury entering the box, and with counsel. * * * I don't like this added publicity in the case; and yet we conform, we cooperate with the men, our fellow human beings in the vocation, and therefore we accept it as part of what we have to expect in a case that has attracted so much attention, that has been so widely publicized, and concerning which there have been utterances over the radio, in the public press, which have unduly accentuated the importance of this case * * * (W)e shall not be influenced in the slightest degree in that calm deliberation, dispassionate discussion, and arriving at a verdict under the institutions under which we live, and concerning which we are proud: the American way of the conduct of a trial.'
36
'It seems that the traditional concept of the 'American way of the conduct of a trial,' particularly a trial for a sordid criminal offense such as that of defendant, includes both the aspects mentioned so understandingly by Mr. Hill: on the one hand over-stimulation, by mass media of communication, of the usual public interest in that which is gruesome; on the other hand a trial by a judge and jury immune from the public passion.' People v. Stroble, 36 Cal.2d 615, 620—621, 226 P.2d 330, 333, 334.
37
Thus, on the California court's own reading of the record, circumstances tending to establish guilt and adduced outside the courtroom before the trial had even begun were avidly exploited by press and other media, actively promoted by the prosecutor. The State court sanctioned this as not only permissible but as an inevitable ingredient of American criminal justice. That sanction contradicts all our professions as to the establishment of guilt on the basis of what takes place in the courtroom, subject to judicial restrictions in producing proof and in the general conduct of the proceedings. Jurors are of course human beings and even with the best of intentions in the world they are, in the well-known phrase of Holmes and Hughes, JJ., 'extremely likely to be impregnated by the environing atmosphere.' Frank v. Mangum, 237 U.S. 309, 345, 349, 35 S.Ct. 582, 594, 595, 596, 59 L.Ed. 969. Precisely because the feeling of the outside world cannot, with the utmost care, be kept wholly outside the courtroom every endeavor must be taken in a civilized trial to keep it outside. To have the prosecutor himself feed the press with evidence that no self-restrained press ought to publish in anticipation of a trial is to make the State itself through the prosecutor, who wields its power, a conscious participant in trial by newspaper, instead of by those methods which centuries of experience have shown to be indispensable to the fair administration of justice. Science with all its advances has not given us instruments for determining when the impact of such newspaper exploitation has spent itself or whether the powerful impression bound to be made by such inflaming articles as here preceded the trial can be dissipated in the mind of the average juror by the tame and often pedestrian proceedings in court. Moreover, the Supreme Court of California found that at the time of the petitioner's trial 'there was notorious widespread public excitement, sensationally exploited by newspaper, radio and television, concerning crimes against children and defendant's crime in particular.' 36 Cal.2d 615, 226 P.2d 334.
38
And so I cannot agree to uphold a conviction which affirmatively treats newspaper participation instigated by the prosecutor as part of 'the traditional concept of the 'American way of the conduct of a trial." Such passion as the newspapers stirred in this case can be explained (apart from mere commercial exploitation of revolting crime) only as want of confidence in the orderly course of justice. To allow such use of the press by the prosecution as the California court here left undisciplined, implies either that the ascertainment of guilt cannot be left to the established processes of law or impatience with those calmer aspects of the judicial process which may not satisfy the natural, primitive popular revulsion against horrible crime but do vindicate the sober second thoughts of a community. If guilt here is clear, the dignity of the law would be best enhanced by establishing that guilt wholly through the processes of law unaided by the infusion of extraneous passion. The moral health of the community is strengthened by according even the most miserable and pathetic criminal those rights which the Constitution has designed for all.
39
As to one other branch of the Court's opinion I must enter a caveat. This concerns the legal significance of petitioner's first confession, the one made to the district attorney. The California Supreme Court disposed of the claim that this was a coerced confession by assuming that it was, but finding that the fact was immaterial because of later, so-called voluntary confessions. I agree with my brethren that this view disregards our decision in Malinski v. New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029. But I cannot agree that, despite the refusal of the California Supreme Court to determine affirmatively the legal character of this first confession, this Court may do so here on its own independent interpretation of the facts. That conclusion does not at all follow from the fact that we make such a determination, at least upon the undisputed evidence, when the State court finds the confession to be free of constitutional defect. The question whether or not a confession is coerced involves a complex judgment upon facts inevitably entangled with assumptions and standards which are part and parcel of the ultimate issue of constitutionality. See Baumgartner v. United States, 322 U.S. 665, 670—671, 64 S.Ct. 1240, 1243, 88 L.Ed. 1525. The finding of 'fact' that a confession is voluntary may involve the application of improper standards to the evidence, and thus the denial of a constitutional right of the accused. But a wholly different situation is presented when a State court concludes that coercion entered into the inevitably complicated factors included in the totality of circumstances that constitutes a confession.
40
Moreover, items of evidence may be undisputed, but not their meaning. 'Facts,' except the most rudimentary, are not like members of a lodge who identify themselves by badges. When a State court has denied an asserted constitutional right, the State court cannot foreclose this Court from considering the federal claim merely by labelling absence of coercion a 'fact.' But if a State court, reading the record in the light of its intimate knowledge of local police and prosecutorial methods, should conclude that a confession was coerced, I cannot believe that this Court would set aside that appraisal and decide independently that the confession was wholly free and self-willed. It is not fortuitous that all the cases in which this Court has indicated that it was not foreclosed by the determination of the State court have been cases in which the State rejected the federal constitutional claim by finding the confession voluntary.
41
Since, as I believe, an affirmative determination of the California Supreme Court that the confession was coerced would not and should not be reexamined here, I would, on this aspect of the case, remand for that court to say whether or not, in its judgment and not as an assumption, the first confession was involuntary.
42
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.
43
My views on the illegality of confessions obtained between the time of arrest and arraignment are contained in Watts v. Indiana, 338 U.S. 49, 56—57, 69 S.Ct. 1347, 1351, 93 L.Ed. 1801; Turner v. Com. of Pennsylvania, 338 U.S. 62, 66—67, 69 S.Ct. 1352, 1353, 1354, 93 L.Ed. 1810; Harris v. South Carolina, 338 U.S. 68, 71—73, 69 S.Ct. 1354, 1356, 1357, 93 L.Ed. 1815. The practice of obtaining confessions prior to arraignment breeds the third degree and the inquisition. As long as it remains lawful for the police to hold persons incommunicado, coerced confessions will infect criminal trials in violation of the commands of due process of law.
44
The facts of this case illustrate the evils of this police practice. While the defendant was being held by the police prior to his arraignment, a lawyer tried to see him. The police refused the lawyer's repeated requests. It was only after a confession was obtained that the lawyer was allowed to talk with the prisoner. This was lawless conduct, condemned by the Supreme Court of California. It was not only lawless conduct; it was conduct that produced a confession.
45
This confession as well as subsequently obtained confessions were used at the trial. The fact that the later confessions may have been lawfully obtained or used is immaterial. For once an illegal confession infects the trial, the verdict of guilty must be set aside no matter how free of taint the other evidence may be. Malinski v. New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029.
46
Moreover, the fact that the accused started talking shortly after he was arrested and prior to the time he was taken before the District Attorney does not save the case. That talk was accompanied or preceded by blows and kicks of the police; and the Supreme Court of California assumed that it was part and parcel of the first confession obtained through 'physical abuse or psychological torture or a combination of the two.'
47
Mr. Justice FRANKFURTER, dissenting.
48
One of the petitioner's grounds for attacking his conviction is that the trial lacked fundamental fairness because the district attorney himself initiated the intrusion of the press into the process of the trial. Such misconduct, the petitioner contends, subverted the adjudicatory process by which guilt is determined in Anglo-Saxon countries so as to offend what the Due Process Clause of the Fourteenth Amendment protects. The issue was raised after verdict, and the Supreme Court of California might have disposed of the claim by ruling that it had not been made at the stage of the proceeding required by State law. That court, however, chose not to do so. It permitted the petitioner to invoke the Due Process Clause and thereby tendered a federal constitutional issue, as this Court recognizes, for our disposition.
1
Petitioner himself did not testify at the trial.
2
R. 287—288 (testimony of John D. Gray); see also R. 210 (testimony of Inspector J. A. Donahoe).
3
Three of these psychiatrists had been appointed by the trial court pursuant to Cal.Penal Code, 1951, § 1027.
4
36 Cal.2d at page 623, 226 P.2d at page 335.
5
36 Cal.2d at page 623, 226 P.2d at page 336.
6
Cal.Penal Code, 1951, §§ 1033, 1035.
7
See Grayson v. Harris, 1925, 267 U.S. 352, 358, 45 S.Ct. 317, 319, 69 L.Ed. 652; International Steel & Iron Co. v. National Surety Co., 1936, 297 U.S. 657, 665—666, 56 S.Ct. 619, 623, 80 L.Ed. 961; State of Indiana ex rel. Anderson v. Brand, 1938, 303 U.S. 95. 98, 58 S.Ct. 443, 445, 82 L.Ed. 685; Takahashi v. Fish & Game Comm., 1948, 334 U.S. 410, 414, note 4, 68 S.Ct. 1138, 1140, 92 L.Ed. 1478.
8
R. 361—362.
9
The trial court made this request as a result of certain conduct on the part of one of the deputy public defenders, set forth in the opinion below at 36 Cal.2d 628, 226 P.2d 338—339.
10
36 Cal.2d at page 628, 226 P.2d at page 338.
11
At no point has petitioner challenged that stipulation. Indeed, the stipulation had been entered into by one of the deputy public defenders, in whom petitioner states he had complete confidence, prior to the time the court asked the Public Defender to be personally present at the insanity trial.
12
In People v. Adamson, 1949, 34 Cal.2d 320, 333, 210 P.2d 13, 19, the Supreme Court of California had this to say about this same Public Defender and his office: 'This court can take judicial notice, too, that it would be difficult to find in California any lawyers more experienced or better qualified in defending criminal cases than the public defender of Los Angeles County and his staff.'
13
Cal.Const., Art. I, § 8.
| 01
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343 U.S. 169
72 S.Ct. 591
96 L.Ed. 863
UNITED STATESv.SPECTOR.
No. 443.
Argued March 6, 1952.
Decided April 7, 1952.
Rehearing Denied May 12, 1952.
See 343 U.S. 951, 72 S.Ct. 1040.
Provision of Immigration Act that alien, against whom order of deportation is outstanding, shall be guilty of felony if he shall willfully fail or refuse to make timely application in good faith for travel or other documents necessary to his departure in view of emphasis on timely application in good faith and lack of requirement that alien know visa requirements of one or more countries, contains warning sufficiently definite to free statute of any constitutional infirmity of vagueness. Immigration Act of 1917, § 20(a—c), as amended, 8 U.S.C.A. § 156(a—c); 18 U.S.C.A. § 3731.
Mr. Robert L. Stern, Washington, D.C., for appellant.
Messrs. John W. Porter, A. L. Wirin, Los Angeles, Cal., for appellee.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Section 20 of the Immigration Act of 1917, as amended, 39 Stat. 890, 57 Stat. 553, 64 Stat. 1010, 8 U.S.C. (Supp. IV) § 156, 8 U.S.C.A. § 156, contains provisions designed to expedite the deportation of aliens. Section 20(a) provides that the Attorney General shall direct the deportation 'to the country specified by the alien, if it is willing to accept him into its territory'. Otherwise the Attorney General shall direct the deportation to any one of a series of specified countries or if deportation to any of them is impracticable, inadvisable, or impossible, then to any country which is willing to accept the alien. Section 20(b) grants the Attorney General powers of supervision over aliens against whom deportation orders have been outstanding for more than six months and fixes penalties for violations of the regulations which the Attorney General has prescribed. Section 20(c) provides that any alien against whom a specified order of deportation is outstanding 'who shall willfully fail or refuse to depart from the United States within a period of six months from the date of such order of deportation, or from the date of the enactment of the Subversive Activities Control Act of 1950, whichever is the later, or shall willfully fail or refuse to make timely application in good faith for travel or other documents necessary to his departure, * * * shall upon conviction be guilty of a felony, and shall be imprisoned not more than ten years * * *.' (Italics added.)
2
The later (the italicized) provision of § 20(c) is involved here. Appellee is an alien who came to this country from Russia in 1913. An order of deportation was entered against him in 1930 by reason of his advocacy of the overthrow of the Government by force and violence. An indictment was returned against him, two counts of which charged him with willfully failing and refusing to make timely application in good faith for travel or other documents necessary to his departure from the United States. The District Court sustained a motion to dismiss these two counts. It held that the statute in question was unconstitutionally vague and indefinite, because it did not specify the nature of the travel documents necessary for departure nor indicate to which country or to how many countries the alien should make application. 99 F.Supp. 778. The case is here on appeal. 18 U.S.C. (Supp. IV) § 3731, 18 U.S.C.A. § 3731.
3
While a statute, plain and unambiguous on its face, may be given an application that violates due process of law, we are not concerned with that problem in the present case. The question here is whether the statute on its face meets the constitutional test of certainty and definiteness. We think it does when viewed in its statutory setting.
4
The statutory scheme seems clear and unambiguous. The choice of a country willing to receive the alien is left first to the alien himself and then to the Attorney General. Once the country willing to receive the alien is identified, the mechanism for effecting his departure remains. The six-month period specified in § 20(c) makes clear what a 'timely' application is. The statutory words 'travel or other documents necessary to his departure' will, of course, have different meanings in reference to various countries. The forms to be filled out, the deposits to be made, the number of photographs to be furnished, and the information to be supplied will vary from country to country. But when the country to which the alien is to be deported is known, any mystery concerning the documents necessary to his departure vanishes. The words 'necessary to his departure' when applied to deportations would normally refer to a lawful departure from this country and a lawful entrance into another. the alien satisfies the statute by making timely application for such documents as the country in question requires for his admission.
5
The statute might well be a trap if, for example, it required the alien to know the visa requirements of one or more countries. But the emphasis of the present statute is on a 'timely application in good faith' for such documents as the country in question may require. Though the visa requirements for entrance into a particular country are in constant change, the command of the statute remains simple and intelligible. We conclude that the warning contained in the statute is sufficiently definite to free it of any constitutional infirmity of vagueness. Cf. United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877; Jordan v. DeGeorge, 341 U.S. 223, 71 S.Ct. 703, 95 L.Ed. 886.
6
Another question of constitutional law is pressed upon us. It is that the statute must be declared unconstitutional because it affords a defendant no opportunity to have the court which tries him pass on the validity of the order of deportation. That question was neither raised by the appellee nor briefed nor argued here. If it had been, we might consider it. See United States v. Curtiss-Wright Corp., 299 U.S. 304, 330, 57 S.Ct. 216, 225, 81 L.Ed. 255. But when a single, naked question of constitutionality is presented, we do not search for new and different constitutional questions. Rather we refrain from passing on the constitutionality of a phase of a statute until a stage has been reached where the decision of the precise constitutional issue is necessary. See United States v. Petrillo, supra.
7
It will be time to consider whether the validity of the order of deportation may be tried in the criminal trial either by the court or by the jury, cf. Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834; Cox v. United States, 332 U.S. 442, 68 S.Ct. 115, 92 L.Ed. 59, when and if the appellee seeks to have it tried. That question is not foreclosed by this opinion. We reserve decision on it.
8
Reversed.
9
Mr. Justice CLARK took no part in the consideration or decision of this case.
10
Mr. Justice BLACK, dissenting.
11
The only thing certain about § 20(c) of the Immigration Act of 1917, as amended, is that violation of its terms is a felony punishable by ten years' imprisonment. An alien ordered deported by the Bureau of Immigration is subject to this ten-year penalty if he 'willfully fail(s) or refuse(s) to make timely application in good faith for travel or other documents necessary to his departure'. To avoid punishment an alien must guess with unerring accuracy what answers a judge or jury1 might someday give to the following questions: (1) When is an application 'timely'? (2) What constitutes a 'good faith' application? (3) What kind of 'documents' are 'necessary to his departure'? (4) To whom must he apply for these documents?
12
Aliens living in this country are not necessarily sophisticated world travelers familiar with the present-day red tape that must be unwound to get from one country to another. Congress should at least indicate when, to whom, and for what the alien should apply. If, for example, the statute merely required an alien to report at a certain time and place to sign 'documents' collected by the American Department of State, the affirmative conduct demanded would at least be clear and specific. But the present statute, in my judgment, entangles aliens in a snare of vagueness from which few can escape. I think the Constitution requires more than a 'bad' guess to make a criminal.2
13
Mr. Justice JACKSON, with whom Mr. Justice FRANKFURTER joins, dissenting.
14
I think this Act to punish an alien's unlawful presence in the United States is unconstitutional for reasons apparent on its face.1 It differs in subtlety but not in substance from one held unconstitutional more than half a century ago in a decision repeatedly and recently cited with approval. Wong Wing v. United States, 163 U.S. 228, 16 S.Ct. 977, 41 L.Ed. 140.2 The Act there stricken down was simple and direct. It provided that any Chinese person or person of Chinese descent adjudged by any justice, judge or commissioner of the United States not lawfully entitled to be or to remain in the United States should first be imprisoned at hard labor and thereafter removed from the United States. The Court conceded that it would be competent for Congress to declare that an alien remaining unlawfully in the United States could be criminally punished 'if such offense were to be established by a judicial trial.' 163 U.S. at page 235, 16 S.Ct. at page 980, 41 L.Ed. 140. However, it said:
15
'But when congress sees fit to further promote such a policy by subjecting the persons of such aliens to infamous punishment at hard labor, or by confiscating their property, we think such legislation, to be valid, must provide for a judicial trial to establish the guilt of the accused.
16
'No limits can be put by the courts upon the power of congress to protect, by summary methods, the country from the advent of aliens whose race or habits render them undesirable as citizens, or to expel such if they have already found their way into our land, and unlawfully remain therein. But to declare unlawful residence within the country to be an infamous crime, punishable by deprivation of liberty and property, would be to pass out of the sphere of constitutional legislation, unless provision were made that the fact of guilt should first be established by a judicial trial. It is not consistent which the theory of our government that the legislature should, after having defined an offense as an infamous crime, find the fact of guilt, and adjudge the punishment by one of its own agents.' 163 U.S. at page 237, 16 S.Ct. at page 981, 41 L.Ed. 140.3
17
Thus the Court held that the Constitution prohibited for criminal purposes a judicial determination without a jury that the alien was illegally present in the United States. It held that the facts which made his presence illegal must be established to the satisfaction of a jury, although the actual case before it seems to have presented only the narrowest and simplest issues, namely, whether the alien was a Chinaman and whether he was here. If so, his entry and his presence at any time were illegal. In contrast, this act incriminates those whose presence here is entirely legal but for guilt of some forbideen conduct since entry. Certainly illegal presence under present laws involves a much more trialworthy issue than in Wong Wing's case.
18
This Act creates a crime also based on unlawful residence in the United States. The crime consists of two elements: one, an outstanding order for deportation of an alien; the other, the alien's willful failure to leave the country or take specified steps toward departure. The Act does not permit the court which tries him for this crime to pass on the illegality of his presence. Production of an outstanding administrative order for his deportation becomes conclusive evidence of his unlawful presence and a consequent duty to take himself out of the country, and no inquiry into the correctness or validity of the order is permitted.
19
The subtlety of the present Act consists of severing the issue of unlawful presence for administrative determination which then becomes conclusive upon the criminal trial court. We must not forget that while the alien is not constitutionally protected against deportation by administrative process he stands on an equal constitutional footing with the citizen when he is charged with crime.4 If Congress can subdivide a charge against an alien and avoid jury trial by submitting the vital and controversial part of it to administrative decision, it can do so in the prosecution of a citizen. And if vital elements of a crime can be established in the manner here attempted, the way would be open to effective subversion of what we have thought to be one of the most effective constitutional safeguards of all men's freedom.
20
Administrative determinations of liability to deportation have been sustained as constitutional only by considering them to be exclusively civil in nature, with no criminal consequences or connotations. That doctrine, early adopted against sharp dissent has been adhered to with increasing logical difficulty as new causes for deportation, based not on illegal entry but on conduct after admittance, have been added, and the period within which deportation proceedings may be instituted has been extended.5 By this Act a deportation order is made to carry potential criminal consequences.
21
If the administrative adjudication that one is liable to deportation and the resulting orders are not exhausted when they have served as warrant for the authorities to eject the alien but become conclusive adjudications of his unlawful presence for the purpose of his criminal prosecution, quite different principles come into play.
22
The adjudication that an alien has been guilty of conduct subjecting him to deportation is not made by procedures constitutional for judgment of crime. It is not made either by a jury trial or a court decision. All that is required by statute is a hearing before an administrative officer and that may be before one who acts both as the alien's judge and prosecutor.6 The finding that the alien is guilty of conduct subjecting him to deportation does not require proof beyond reasonable doubt but may be made on mere preponderance of evidence. If the determination of deportability is subject to review under § 10 of the Administrative Procedure Act, 60 Stat. 243, 5 U.S.C. § 1009, 5 U.S.C.A. § 1009, a question expressly reserved in McGrath v. Kristensen, 340 U.S. 162, 169, 71 S.Ct. 224, 229, 95 L.Ed. 173, and not decided here, any evidentiary attack raises only the question whether on the record as a whole there is substantial evidence in support of the order. Universal Camera Corp. v. Labor Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. No statute of limitations applies in some cases and the offense which renders the alien deportable may have occurred, but ceased, many years ago,7 while under statutes applicable to crimes, the same act, if a crime, long would have ceased to be subject to prosecution.
23
Having thus dispensed with important constitutional safeguards in obtaining an administrative adjudication that the alien is guilty of conduct making him deportable on the ground it is only a civil proceeding, the Government seeks to turn around and use the result as a conclusive determination of that fact in a criminal proceeding. We think it cannot make that use of such an order.
24
It must be remembered that the deportation proceeding is an exercise of adjudicative, not rule-making, power. The issue on which evidence is heard is whether the alien has committed acts which are grounds for deportation. The decision is whether he is guilty of such past conduct, and, if so, the legal result is liability to deportation. This is not the type of administrative proceeding which results in a rule or order prescribing rates or otherwise guiding future conduct.
25
Experience in the Executive Department with the immigration laws made me aware of a serious weakness in the deportation program which Congress by this Act was trying to overcome. A deportation policy can be successful only to the extent that some other state is willing to receive those we expel. But, except selected individuals who can do us more harm abroad than here, what Communist power will cooperate with our deportation policy by receiving our expelled Communist aliens? And what non-Communist power feels such confidence in its own domestic security that it can risk taking in persons this stable and powerful Republic finds dangerous to its security? World conditions seem to frustrate the policy of deportation of subversives. Once they gain admission here, they are our problem and one that cannot be shipped off to some other part of the world.
26
While we would not join in a strained construction of the Constitution to create captious or trivial obstacles or delays to solution of this problem, we cannot sanction sending aliens to prison except upon compliance with constitutional procedures. We can afford no liberties with liberty itself.
27
The Court intimates that it might be compelled to agree with this constitutional objection to the statute were the reasoning advanced by counsel. I abstain from comment on this new squeamishness whereby the Court imprisons itself within counsel's argument. Cf. Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131. It is our duty before reversing a judgment to examine any ground upon which it can be sustained, even a ground which the court below may have overlooked or expressly rejected. See Langnes v. Green, 282 U.S. 531, 51 S.Ct. 243, 75 L.Ed. 520, and Watts, Watts & Co. v. Unione Austriaca, 248 U.S. 9, 21 39 S.Ct. 1, 2, 63 L.Ed. 100. But this Court is reversing the lower court which held this statute unconstitutional and is sending the Act forth limping with a potential infirmity, because the Court has become too shy to take up a point not sponsored by counsel, though, if well taken, it would support the judgment here being overturned. The least that could be done would be to order the case reargued.
1
'In earlier times, some Rulers placed their criminal laws where the common man could not see them, in order that he might be entrapped into their violation. Others imposed standards of conduct impossible of achievement to the end that those obnoxious to the ruling powers might be convicted under the forms of law. No one of them ever provided a more certain entrapment, than a statute which prescribes a penitentiary punishment for nothing more than a layman's failure to prophesy what a judge or jury will do. * * *' Williams v. North Carolina, 325 U.S. 226, 278, 65 S.Ct. 1092, 1118, 89 L.Ed. 1577 (dissenting opinion). Cf. United States v. L. Cohen Grocery Co., 255 U.S. 81, 89, 41 S.Ct. 298, 300, 65 L.Ed. 516.
2
My belief that the statute is void for vagueness makes it unnecessary for me to reach the constitutional question discussed by Mr. Justice JACKSON, although I have not yet seen a satisfactory reason for rejecting his view. See my opinion in Maggio v. Zeitz, 333 U.S. 56, 78—81, 68 S.Ct. 401, 412—413, 92 L.Ed. 476.
1
The pertinent portion of § 20(c) of the Immigration Act of 1917, as rewritten in § 23 of the Internal Security Act of 1950, 64 Stat. 1010, 8 U.S.C. (Supp. IV) § 156(c), 8 U.S.C.A. § 156(c) reads as follows: 'Any alien against whom an order of deportation is outstanding under (various named statutes) * * * who shall willfully fail or refuse to depart from the United States within a period of six months from the date of such order of deportation, or from September 23, 1950, whichever is the later, or shall willfully fail or refuse to make timely application in good faith for travel or other documents necessary to his departure * * * shall upon conviction be guilty of a felony, and shall be imprisoned not more than ten years * * *.'
2
Harisiades v. Shaughnessy, 342 U.S. 580, 586, 72 S.Ct. 512; Li Sing v. United States, 180 U.S. 486, 495, 21 S.Ct. 449, 453, 45 L.Ed. 634; Downes v. Bidwell, 182 U.S. 244, 283, 21 S.Ct. 770, 785, 45 L.Ed. 1088; Russian Volunteer Fleet v. United States, 282 U.S. 481, 489, 51 S.Ct. 229, 231, 75 L.Ed. 473.
3
In Li Sing v. United States, supra, 180 U.S. at pages 494 495, 21 S.Ct. at page 453, 45 L.Ed. 634, the Court quoted Fong Yue Ting v. United States, 149 U.S. 698, 730, 13 S.Ct. 1016, 1028, 37 L.Ed. 905, as follows: '(An) order of deportation is not a punishment for crime. It is not a banishment, in the sense in which that word is often applied to the expulsion of a citizen from his country by way of punishment. It is but a method of enforcing the return to his own country of an alien who has not complied with the conditions upon the performance of which the government of the nation, acting within its constitutional authority, and through the proper departments, has determined that his continuing to reside here shall depend. He has not, therefore, been deprived of life, liberty, or property, without due process of law; and the provisions of the Constitution, securing the right of trial by jury, and prohibiting unreasonable searches and seizures, and cruel and unusual punishments, have no application.'
The Li Sing Court then went on, however, to say that: 'It may be proper here to mention that this court has held that, while the United States can forbid aliens from coming within their borders, an expel them from the country, and can devolve the power and duty of identifying and arresting such persons upon executive or subordinate officials, yet, when Congress sees fit to further promote such a policy by subjecting the persons of such aliens to infamous punishment at hard labor, or by confiscating their property, such legislation, to be valid, must provide for a judicial trial to establish the guilt of the accused. Wong Wing v. United States, 163 U.S. 228, 16 S.Ct. 977, 41 L.Ed. 140.'
That Court thereby made it clear that there is a great distinction between deportation itself and a deportation order that may be made the basis of subsequent criminal punishment. It is that distinction which we press for here. See Fraenkel, Can the Administrative Process Evade the Sixth Amendment? 1 Syracuse L.Rev. 173.
4
Harisiades v. Shaughnessy, supra, 342 U.S. at page 586, 72 S.Ct. 517.
5
Harisiades v. Shaughnessy, supra, 342 U.S. at page 587, 72 S.Ct. 517, 518.
6
Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 564, 94 L.Ed. 1336, holding that the Administrative Procedure Act, 60 Stat. 237, 5 U.S.C. § 1001 et seq., 5 U.S.C.A. § 1001 et seq., required separation of judging and prosecuting functions, was subsequently set aside by Congress which specifically exempted deportation proceedings from §§ 1004, 1006, and 1007 of the Act. Public Law 843, 81st Cong., 2d Sess., 8 U.S.C. (Supp. IV) § 155a, 8 U.S.C.A. § 155a.
7
Harisiades v. Shaughnessy, supra.
| 12
|
343 U.S. 205
72 S.Ct. 618
96 L.Ed. 888
UEBERSEE FINANZ-KORPORATION, A.G.v.McGRATH, Atty. Gen.
No. 178.
Argued Jan. 2, 1952.
Decided April 7, 1952.
Mr. Thurman, Arnold, Washington, D.C., for petitioner.
Mr. James L. Morrisson, Washington, D.C., for respondent.
Mr. Justice MINTON delivered the opinion of the Court.
1
Petitioner sued in the District Court for the District of Columbia for the return of certain of its property vested by the Alien Property Custodian in 1942 under the Trading with the Enemy Act of 1917, 40 Stat. 411, as amended by the First War Powers Act, 1941, 55 Stat. 839, 50 U.S.C.A.Appendix, § 1 et seq. The District Court found for the Custodian, 82 F.Supp. 602, and the Court of Appeals affirmed, 89 U.S.App.D.C. 167, 196 F.2d 557. We granted certiorari, 342 U.S. 847, 72 S.Ct. 74.
2
The following facts were found by the District Court and confirmed by the Court of Appeals upon an abundance of evidence in the record. In 1931, Wilhelm von Opel, a citizen and resident national of Germany, owned certain shares of stock in the Adam Opel Works, a German corporation largely owned by General Motors Corporation. Wilhelm had an agreement with General Motors to sell his shares at a price. In 1931, he became alarmed at business conditions in Germany and desired to get his stock out of the country to save his investment for himself and his family from the economic and governmental influences there prevailing. In that year, he and his wife entered into what was known under German law as a usufruct agreement with their only son, Fritz, who had not lived in Germany since 1929 and for that reason was not subject to the German restrictions upon the handling of this property. By this agreement, Wilhelm's title to the shares in the Adam Opel Works was transferred to Fritz. The instrument provided as follows: 'The usufruct in the shares is not assigned to Fritz von Opel. It remains with Wilhelm von Opel and his wife * * * until the death of the survivor of them. However, 20% of all dividends and interest received will accrue to Fritz von Opel.'
3
The instrument provided further that if Fritz died before his parents and without issue, the transfer was to be void and was to revert to his parents, the transferors. If the parents died before Fritz, he was to have the property as an advancement, to be deducted from his share in his parents' estate. The usufruct income not drawn by the parents was also to be accounted for by Fritz as an advancement.
4
After much expert testimony, the District Court found the law of Germany pertaining to such usufruct agreement to be as follows (82 F.Supp. 605):
5
'(52.) A right of usufruct, once established, is under German law an in rem right in property. A person having a usufruct in property has a right: '(a) to the enjoyment of the property or, in the case of money or securities, to the income from the securities;
6
'(b) to co-possession of the property together with the person holding legal title to the property;
7
'(c) to a voice in the management of the property insofar as the maintenance and preservation of the usufructuary's rights under subsection (a) above are concerned;
8
'(d) to prevent the sale or disposition of the property as a result of his right to co-possession;
9
'(e) the German Civil Code does not mention whether the usufructuary, for the protection of his income, has any voting rights. In the absence of a decided case the legal commentaries speculate in three different directions. One position is that the title owner has all voting rights and the usufructuary no voting rights whatsoever. The second position is that the title owner has a voting right for all measures which have nothing to do with income while the usufructuary can vote in regard to income. The third position is that the usufructuary has all the voting rights.' R. 60—61; 82 F.Supp. 602, 605.
10
Under this agreement, Wilhelm and his wife had a usufruct in the Adam Opel stock transferred to Fritz. The latter, on October 17, 1931, sold the usufruct property to General Motors, in accordance with the contract which Wilhelm had with that company. In order to protect the several interests involved, the proceeds of the sale were transferred to petitioner, a Swiss corporation acquired by Fritz for this purpose. Eventually these funds were used to purchase stocks, later transferred to petitioner, in corporations organized under the various states of the United States, from which derived the stocks vested by the Alien Property Custodian. Fritz owned 97% of the stock of petitioner. Under the German law, as found by the District Court, a usufructuary may follow the ascertainable proceeds of the original property subject to the usufruct. Therefore, the stocks purchased by petitioner with the proceeds of the sale of the usufruct property were subject to and were treated as subject to the usufruct agreement.
11
On June 7, 1935, Fritz placed all but three shares of the capital stock of petitioner in a safety deposit box in Zurich, Switzerland, and gave the key thereto to Hans Frankenberg, who received it as agent of Wilhelm von Opel. Frankenberg had become the managing director of petitioner at Wilhelm's request in 1932, and exercised control over petitioner's investments until the vesting of the property herein involved. By the delivery to Wilhelm's agent of the key to the box containing petitioner's stock, there was thus transferred to Wilhelm possession of the res, subject to the usufruct; and the usufruct agreement was thereby consummated. Fritz also engaged in activities on behalf of petitioner concerning its investments, but under the guidance of Wilhelm or his agent, Frankenberg.
12
Neither Wilhelm nor his wife ever drew any income from the usufruct. An oil lease owned by one of the American corporations whose stock was purchased with proceeds from the sale of the Adam Opel shares to General Motors, was sold, and the proceeds of that sale used to pay a fine of Wilhelm in Germany. Expenses of a trip by Wilhelm to South America and one to Hungary were paid by petitioner and charged against the income account of Fritz.
13
Petitioner owned all the stock of a subsidiary Hungarian corporation engaged in the mining of bauxite in Hungary, and in 1939 and 1940 guaranteed a loan by a Swiss bank to this corporation for its operations. The loan was repaid in November 1942. The United States was at war with Hungary from December 13, 1941. During October, November, and December 1941, the Hungarian corporation shipped bauxite to Germany and had a contract to do so until the end of 1942.
14
In 1942, the Alien Property Custodian vested the stocks held by petitioner in several American corporations and all the right, title, and interest of petitioner in and to a certain contract with another American corporation. All of the stocks had been acquired from the proceeds of the original usufruct property.
15
From October 5, 1931, the date of the usufruct agreement, the usufruct property was controlled, used, and in all ways handled and directed by Wilhelm and his managing agents. The interest of Fritz in petitioner was wholly subordinated to that of Wilhelm. Fritz had the bare legal title and the right to 20% of the income from the property. Wilhelm is now dead. His wife, a daughter, and the son, Fritz, still survive.
16
Petitioner was in this Court on the pleadings in this case in Clark v. Uebersee Finanz-Korp., A.G., 332 U.S. 480, 68 S.Ct. 174, 92 L.Ed. 88. There, it was alleged in the complaint that petitioner was not an enemy or ally of an enemy, and that at no time specified in the complaint had the property in question been owned or controlled, directly or indirectly, in whole or in part, by an enemy, an ally of an enemy, or a national of a designated enemy country; that none of the property had been owing or belonging to or held on account of or for the benefit of any such person or interest. This Court construed these allegations 'to mean that the property is free of all enemy taint and particularly that the corporations whose shares have been seized, the corporations which have a contract in which respondent has an interest, and respondent itself, are companies in which no enemy, ally of an enemy, nor any national of either has any interest of any kind whatsoever, and that respondent has not done business in the territory of the enemy or any ally of an enemy.' 332 U.S. at page 482, 68 S.Ct. at page 175. The complaint alleging such facts was held to be sufficient as against a motion to dismiss, and the case was sent back for trial. Upon the trial, the facts were found as above stated.
17
However, from the facts found, it is clear that petitioner for all practical purposes was, to the extent of 97%, largely owned, managed, used, and controlled by Wilhelm von Opel, a national of Germany. The findings demonstrate that petitioner was a corporate holding company acquired for the purpose of enabling Wilhelm to control and use his property as he saw fit. His interest was paramount and controlling. The interest of Fritz was wholly and in reality subordinated to Wilhelm's, except as to the right of Fritz to receive 20% of the income from the usufruct property. Petitioner was neutral in name only. Its enemy taint was all but complete because of the predominant influence and control of Wilhelm. Wilhelm had and used the substance, while Fritz had the bare legal title; and such right as this gave Fritz, he exercised or failed to exercise in complete subordination to the will of his father. We agree with the Court of Appeals when it said: 'This case does not involve a diluted 'taint'; it involves the ownership by enemy nationals of the economic benefits of American business.' 88 U.S.App.D.C. 183, 191 F.2d at page 328.
18
Before 1941 the property here involved could not have been vested, because this petitioner was a corporation of a neutral country, Switzerland, unless such corporation was shown to be doing business in an enemy country or in the country of an ally of an enemy. Behn, Meyer & Co. v. Miller, 266 U.S. 457, 45 S.Ct. 165, 69 L.Ed. 374; Clark v. Uebersee Finanz-Korp., A.G., supra. But on December 18, 1941, Congress amended the Trading with the Enemy Act by the passage of the First War Powers Act, 1941, 55 Stat. 839, and gave respondent power to vest and property or interest of any foreign country or national thereof in said property. However, under § 9(a) of the Trading with the Enemy Act, one not an enemy, as defined in § 2 of said Act, can recover any interest, right, or title which he has in the property so vested. As construed by this Court in Clark v. Uebersee Finanz-Korp., A.G., supra, § 2 included in the word 'enemy' all corporations affected with an 'enemy taint.' Since we find petitioner to be so affected because of the direct and indirect control and domination by an enemy national, Wilhelm von Opel, petitioner cannot recover under § 9(a).
19
It is suggested that vested property must be returned unless there is proof of actual use of the property for economic warfare against the United States. The crucial fact is not the actual use by an enemy-tainted corporation of its power in economic warfare against the United States. It is the existence of that power that is controlling and against which the Government of the United States may move. The Government does not have to wait for the enemy to do its worst before it acts. Cf. Miller v. United States, 11 Wall. 268, at page 306, 20 L.Ed. 135.
20
As the District Court said, it would be difficult 'to find a stronger case of enemy taint in vested property short of full ownership by an enemy than exists in this case. The neutral aspect of ownership in the property is insignificant * * *.' 82 F.Supp. at page 606.
21
In view of the decision today in Kaufman v. Societe Internationale, Pour Participations Industrielles et Commerciales S.A., 343 U.S. 156, 72 S.Ct. 611, consideration must be given to an effort of petitioner to open the case for the assertion of the rights of Fritz von Opel.
22
Petitioner attempted at the end of the litigation in the District Court to have the case reopened for the purpose of asserting and establishing the nonenemy status of Fritz von Opel. Because of the failure to diligently and timely assert the interest of Fritz, the District Court refused to reopen the case for further consideration of such separate interest.
23
The judgment of the Court of Appeals is affirmed as to petitioner, but in view of the novel holding in Kaufman, the Court is of the opinion that its decision in Hormel v. Helvering, 312 U.S. 552, 61 S.Ct. 719, 85 L.Ed. 1037, is applicable. We accordingly vacate the judgment of the court below and remand the cause to the District Court for consideration, in the light of Kaufman and this opinion, of any application that may be made on behalf of Fritz von Opel within 30 days from the date of remand, and in all other respects the judgment is affirmed.
24
It is so ordered.
25
Judgment affirmed in part; judgment vacated in part and cause remanded with directions.
26
Mr. Justice CLARK took no part in the consideration or decision of this case.
| 34
|
343 U.S. 214
72 S.Ct. 654
96 L.Ed. 894
RAYv.BLAIR.
No. 649.
Argued March 31, 1952.
Decided April 15, 1952.
Motion to Retax Costs Denied May 5, 1952.
See 72 S.Ct. 1034.
Messrs. Marx Leva, Washington, D.C., Harold M. Cook, Birmingham, Ala., for petitioner.
Mr. Horace C. Wilkinson, Birmingham, Ala., for respondent.
Mr. Justice REED delivered the opinion of the Court.
1
The Supreme Court of Alabama upheld a peremptory writ of mandamus requiring the petitioner, the chairman of that state's Executive Committee of the Democratic Party, to certify respondent Edmund Blair, a member of that party, to the Secretary of State of Alabama as a candidate for Presidential Elector in the Democratic Primary to be held May 6, 1952. Respondent Blair was admittedly qualified as a candidate except that he refused to include the following quoted words in the pledge required of party candidates a pledge to aid and support 'the nominees of the National Convention of the Democratic Party for President and Vice-President of the United States.' The chairman's refusal of certification was based on that omission.
2
The mandamus was approved on the sole ground that the above requirement restricted the freedom of a federal elector to vote in his Electoral College for his choice for President. Ala.Sup., 57 So.2d 395. The pledge was held void as unconstitutional under the Twelfth Amendment of the Constitution of the United States.1 Because the mandamus was based on this federal right specially claimed by respondent, we granted certiorari. 28 U.S.C. § 1257(3), 28 U.S.C.A. § 1257(3); 343 U.S. 901, 72 S.Ct. 637.
3
On account of the limited time before the primary election date, this Court ordered prompt argument on March 31, 1952, after granting certiorari and handed down a per curiam decision on April 3, 343 U.S. 154, 72 S.Ct. 598, stating summarily our conclusion on the federal constitutional issue that determined the Alabama judgment. This opinion is to supplement that statement. Our mandate issued forthwith.
4
The controversy arose under the Alabama laws permitting party primaries. Title 17 of the Code of Alabama, 1940, as amended, provides for regular optional primary elections in that state on the first Tuesday in May of even years by any political party, as defined in the chapter, at state cost. §§ 336, 337, 340, 343. They are subject to the same penalties and punishment provisions as regular state elections. § 339. Parties may select their own committee in such manner as the governing authority of the party may desire. § 341. Section 344 provides that the chairman of the state executive committee shall certify the candidates other than those who are candidates for county offices to the Secretary of State of Alabama. That official, within not less than 30 days prior to the time of holding the primary elections, shall certify these names to the probate judge of any county holding an election.
5
Every state executive committee is given the power to fix political or other qualifications of its own members. It may determine who shall be entitled and qualified to vote in the primary election or to be a candidate therein. The qualifications of voters and candidates may vary.2
6
Section 348 requires a candidate to file his declaration of candidacy with the executive committee in the form prescribed by the governing body of the party. There is a provision, § 350, which reads as follows:
7
'At the bottom of the ballot and after the name of the last candidate shall be printed the following, viz: 'By casting this ballot I do pledge myself to abide by the result of this primary election and to aid and support all the nominees thereof in the ensuing general election."
8
On consideration of these sections in other cases the Supreme Court of Alabama has reached conclusions generally conformable to the current of authority. Section 347 has been said by the Supreme Court of Alabama in Ray v. Garner, 57 So.2d 824, 826, to give full power to the state executive committee to determine 'who shall be entitled and qualified to vote in primary elections or be candidates or otherwise participate therein * * * just so such Committee action does not run afoul of some statutory or constitutional provision.'
9
The Garner case involved a pledge adopted by the State Democratic Executive Committee for printing on the primary ballot, reading as follows:
10
'By casting this ballot I do pledge myself to abide by the result of this Primary Election and to aid and support all the nominees thereof in the ensuing General Elections. I do further pledge myself to aid and support the nominees of the National Convention of the Democratic Party for President and Vice-President of the United States.' 57 So.2d 825.
11
This is substantially the same pledge that created the controversy in this present case. The court also called attention approvingly to Lett v. Dennis, 221 Ala. 432, 433, 129 So. 33, 34, a case that required a candidate in the primary to follow a party requirement and make a public oath as to his vote in the past general election, where it was declared 'a test by a political organization of party affiliation and party fealty is reasonable and proper to be prescribed for those participating in its primary elections for nomination of candidates for office'.3 As to the power to prescribe tests for participation in primary elections, it was added in the Garner case (57 So.2d 826) that 'in Alabama this prerogative is vested in the State Party Executive Committee, acting through its duly elected or chosen members. Smith v. McQueen (232 Ala. 90, 166 So. 788).'4 57 So.2d 826. The McQueen case involved the selection of delegates to a national political convention. It was also said in Ray v. Garner concerning the voter's pledge that:
12
'Primarily, the pledge must be germane to party membership and party elections and, while the last clause of the pledge pertains to the national party, the party in Alabama will be a part of it by sending delegates to participate in the national convention, the Executive Committee having ordered their election and the party thereby having signified its intention to become a member of the national party. Therefore, it was within the competency of the Committee to adopt the resolution so binding the voters in the primary.'5 57 So.2d 826.
13
As is well known political parties in the modern sense were not born with the Republic. They were created by necessity, by the need to organize the rapidly increasing population, scattered over our Land, so as to coordinate efforts to secure needed legislation and oppose that deemed undesirable. Compare Bryce, Modern Democracies, p. 546. The party conventions of locally chosen delegates, from the county to the national level, succeeded the caucuses of self-appointed legislators or other interested individuals. Dissatisfaction with the manipulation of conventions caused that system to be largely superseded by the direct primary. This was particularly true in the South because, with the predominance of the Democratic Party in that section, the nomination was more important than the election. There primaries are generally, as in Alabama, optional.6 Various tests of party allegiance for candidates in direct primaries are found in a number of states.7 The requirement of a pledge from the candidate participating in primaries to support the nominee is not unusual.8 Such a provision protects a party from intrusion by those with adverse political principles.9 It was under the authority of § 347 of the Alabama Code, note 2, supra, that the State Democratic Executive Committee of Alabama adopted a resolution on January 26, 1952, requiring candidates in its primary to pledge support to the nominees of the National Convention of the Democratic Party for President and Vice-President. It is this provision in the qualifications required by the party under § 347 which the Supreme Court of Alabama held unconstitutional in this case.
14
The opinion of the Supreme Court of Alabama concluded that the Executive Committee requirement violated the Twelfth Amendment, note 1, supra. It said:
15
'We appreciate the argument that from time immemorial, the electors selected to vote in the college have voted in accordance with the wishes of the party to which they belong. But in doing so, the effective compulsion has been party loyalty. That theory has generally been taken for granted, so that the voting for a president and vice-president has been usually formal merely. But the Twelfth Amendment does not make it so. The nominees of the party for president and vice-president may have become disqualified, or peculiarly offensive not only to the electors but their constituents also. They should be free to vote for another, as contemplated by the Twelfth Amendment.'10 57 So.2d 398.
16
In urging a contrary view the dissenting Alabama justices, in supporting the right of the Committee to require this candidate to pledge support to the party nominees, said:
17
'Any other view, it seems, would destroy effective party government and would privilege any candidate, regardless of his political persuasion, to enter a primary election as a candidate for elector and fix his own qualifications for such candidacy. This is contrary to the traditional American political system.' 57 So.2d 403.
18
The applicable constitutional provisions on their face furnish no definite answer to the query whether a state may permit a party to require party regularity from its primary candidates for national electors.11 The presidential electors exercise a federal function in balloting for President and Vice-President but they are not federal officers or agents any more than the state elector who votes for congressmen. They act by authority of the state that in turn receives its authority from the federal constitution.12 Neither the language of Art. II, § 1, nor that of the Twelfth Amendment forbids a party to require from candidates in its primary a pledge of political conformity with the aims of the party. Unless such a requirement is implicit, certainly neither provision of the Constitution requires a state political party, affiliated with a national party through acceptance of the national call to send state delegates to the national convention, to accept persons as candidates who refuse to agree to abide by the party's requirement.13
19
The argument against the party's power to exclude as candidates in the primary those unwilling to agree to aid and support the national nominees runs as follows: The constitutional method for the selection of the President and Vice-President is for states to appoint electors who shall in turn vote for our chief executives. The intention of the Founders was that those electors should exercise their judgment in voting for President and Vice-President. Therefore this requirement of a pledge is a restriction in substance, if not in form, that interferes with the performance of this constitutional duty to select the proper persons to head the Nation, according to the best judgment of the elector. This interference with the elector's freedom of balloting for President relates directly to the general election and is not confined to the primary, it is contended, because under United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368, and Smith v. Allwright, 321 U.S. 649, 659, 64 S.Ct. 757, 762, 88 L.Ed. 987, the Alabama primary is an integral part of the general election. See Schnell v. Davis, 336 U.S. 933, 69 S.Ct. 749, 93 L.Ed. 1093. Although Alabama, it is pointed out, requires electors to be chosen at the general election by popular vote, Ala.Code 1940, Tit. 17, § 222, the real election takes place in the primary. Limitation as to entering a primary controls the results of the general election.14
20
First we consider the impact of the Classic and Allwright cases on the present issues. In the former case, we dealt with the power of Congress to punish frauds in the primaries '(w)here the state law has made the primary an integral part of the procedure of choice'. (313 U.S. 399, 61 S.Ct. 1039.) We held that Congress had such power because the primary was a necessary step in the choice of candidates for election as federal representatives. Therefore the sanctions of §§ 19 and 20 of the Old Criminal Code, subsequently revised as 18 U.S.C. §§ 241 and 242, 18 U.S.C.A. §§ 241, 242, which forbade injury to constitutionally secured rights, applied to the right to vote in the primary. 313 U.S. at 317—321, 61 S.Ct. 1038 1040. In the latter, the problem was the constitutionality of the exclusion of citizens by a party as electors in a party primary because of race. We held, on consideration of state participation in the regulation of the primary, that the party exclusion was state action and such state action was unconstitutional because the primary and general election were a single instrumentality for choice of officers. The Fifteenth Amendment's prohibition of abridgment by a state of the right to vote on account of race made the exclusion unconstitutional. Consequently, under 8 U.S.C. §§ 31 and 43, 8 U.S.C.A. §§ 31, 43, an injured party might sue one injuring him. 321 U.S. 649, 660—664, 64 S.Ct. 757, 763—765, 88 L.Ed. 987.
21
In Alabama, too, the primary and general elections are a part of the state-controlled elective process. The issue here, however, is quite different from the power of Congress to punish criminal conduct in a primary or to allow damages for wrongs to rights secured by the Constitution. A state's or a political party's exclusion of candidates from a party primary because they will not pledge to support the party's nominees is a method of securing party candidates in the general election, pledged to the philosophy and leadership of that party. It is an exercise of the state's right to appoint electors in such manner, subject to possible constitutional limitations, as it may choose. U.S.Const., Art. II, § 1. The fact that the primary is a part of the election machinery is immaterial unless the requirement of pledge violates some constitutional or statutory provision. It was the violation of a secured right that brought about the Classic and Allwright decisions. Here they do not apply unless there was a violation of the Twelfth Amendment by the requirement to support the nominees of the National Convention.
22
Secondly, we consider the argument that the Twelfth Amendment demands absolute freedom for the elector to vote his own choice, uninhibited by pledge. It is true that the Amendment says the electors shall vote by ballot. But it is also true that the Amendment does not prohibit an elector's announcing his choice beforehand, pledging himself. The suggestion that in the early elections candidates for electors—contemporaries of the Founders would have hesitated, because of constitutional limitations, to pledge themselves to support party nominees in the event of their selection as electors is impossible to accept. History teaches that the electors were expected to support the party nominees.15 Experts in the history of government recognize the longstanding practice.16 Indeed, more than twenty states do not print the names of the candidates for electors on the general election ballot. Instead in one form or another they allow a vote for the presidential candidate of the national conventions to be counted as a vote for his party's nominees for the electoral college.17 This long-continued practical interpretation of the constitutional propriety of an implied or oral pledge of his ballot by a candidate for elector as to his vote in the electoral college weights heavily in considering the constitutionality of a pledge, such as the one here required, in the primary.
23
However, even if such promises of candidates for the electoral college are legally unenforceable because violative of an assumed constitutional freedom of the elector under the Constitution, Art. II, § 1, to vote as he may choose in the electoral college, it would not follow that the requirement of a pledge in the primary is unconstitutional. A candidacy in the primary is a voluntary act of the applicant. He is not barred, discriminatorily, from participating but must comply with the rules of the party. Surely one may voluntarily assume obligations to vote for a certain candidate. The state offers him opportunity to become a candidate for elector on his own terms, although he must file his declaration before the primary. Code of Ala., Tit. 17, § 145. Even though the victory of an independent candidate for elector in Alabama cannot be anticipated the state does offer the opportunity for the development of other strong political organizations where the need is felt for them by a sizable block of voters. Such parties may leave their electors to their own choice.
24
We conclude that the Twelfth Amendment does not bar a political party from requiring the pledge to support the nominees of the National Convention. Where a state authorizes a party to choose its nominees for elector in a party primary and to fix the qualifications for the candidates, we see no federal constitutional objection to the requirement of this pledge.
25
Reversed.
26
Mr. Justice BLACK took no part in the consideration or decision of this case.
27
Mr. Justice FRANKFURTER, not having heard the argument, owing to illness, took no part in the disposition of the case.
28
Mr. Justice JACKSON, with whom Mr. Justice DOUGLAS joins, dissenting.
29
The Constitution and its Twelfth Amendment allow each State, in its own way, to name electors with such personal qualifications, apart from stated disqualifications, as the State prescribes. Their number, the time that they shall be named, the manner in which the State must certify their ascertainment and the determination of any contest are prescribed by federal law. U.S.Const., Art. II, § 1, 3 U.S.C. §§ 1—7, 3 U.S.C.A. §§ 1—7. When chosen, they perform a federal function of balloting for President and Vice President, federal law prescribing the time of meeting, the manner of certifying 'all the votes given by them,' and in detail how such certificates shall be transmitted and counted. U.S.Const., Amend. XII, 3 U.S.C. §§ 9—20, 3 U.S.C.A. §§ 9—20. But federal statute undertakes no control of their votes beyond providing 'The electors shall vote for President and Vice President, respectively, in the manner directed by the Constitution', 3 U.S.C. § 8, 3 U.S.C.A. § 8, and the Constitution requires only that they 'vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves'. U.S.Const., Amend. XII. No one faithful to our history can deny that the plan originally contemplated, what is implicit in its text, that electors would be free agents, to exercise an independent and nonpartisan judgment as to the men best qualified for the Nation's highest offices.* Certainly under that plan no state law could control the elector in performance of his federal duty, any more than it could a United States Senator who also is chosen by, and represents, the State.
30
This arrangement miscarried. Electors, although often personally eminent, independent, and respectable, officially became voluntary party lackeys and intellectual nonentities to whose memory we might justly paraphrase a tuneful satire:
31
They always voted at their Party's call And never thought of thinking for themselves at all.
32
As an institution the Electoral College suffered atrophy almost indistinguishable from rigor mortis.
33
However, in 1948, Alabama's Democratic Party Electors refused to vote for the nominee of the Democratic National Convention. To put an end to such party unreliability the party organization, exercising state-delegated authority, closed the official primary to any candidate for elector unless he would pledge himself, under oath, to support any candidate named by the Democratic National Convention. It is conceded that under long-prevailing conditions this effectively forecloses any chance of the State being represented by an unpledged elector. In effect, before one can become an elector for Alabama, its law requires that he must pawn his ballot to a candidate not yet named, by a convention not yet held, of delegates not yet chosen. Even if the nominee repudiates the platform adopted by the same convention, as Democratic nominees have twice done in my lifetime (1904, 1928), the elector is bound to vote for him. It will be seen that the State has sought to achieve control of the electors' ballots. But the balloting cannot be constitutionally subjected to any such control because it was intended to be free, an act performed after all functions of the electoral process left to the States have been completed. The Alabama Supreme Court held that such a requirement violates the Federal Constitution, and I agree.
34
It may be admitted that this law does no more than to make a legal obligation of what has been a voluntary general practice. If custom were sufficient authority for amendment of the Constitution by Court decree, the decision in this matter would be warranted. Usage may sometimes impart changed content to constitutional generalities, such as 'due process of law,' 'equal protection,' or 'commerce among the states.' But I do not think powers or discretions granted to federal officials by the Federal Constitution can be forfeited by the Court for disuse. A political practice which has its origin in custom must rely upon custom for its sanctions.
35
The demise of the whole electoral system would not impress me as a disaster. At its best it is a mystifying and distorting factor in presidential elections which may resolve a popular defeat into an electoral victory. At its worst it is open to local corruption and manipulation, once so flagrant as to threaten the stability of the country. To abolish it and substitute direct election of the President, so that every vote wherever cast would have equal weight in calculating the result, would seem to me a gain for simplicity and integrity of our governmental processes.
36
But the Court's decision does not even move in that direction. What it is doing is to entrench the worst features of the system in constitutional law and to elevate the perversion of the forefathers' plan into a constitutional principle. This judicial overturn of the theory that has come down to us can not plead the excuse that it is a practical remedy for the evils or weaknesses of the system.
37
The Court is sanctioning a new instrument of power in the hands of any faction that can get control of the Democratic National Convention to make it sure of Alabama's electoral vote. When the party is in power this will likely be the administration faction and when not in power no one knows what group it will be. This device of prepledged and oath-bound electors imposes upon the party within the State an oath-bound regularity and loyalty to the controlling element in the national party. It centralizes party control and, instead of securing for the locality a share in the central management, it secures the central management in dominance of the local vote in the Electoral College. If we desire free elections, we should not add to the leverage over local party representatives always possessed by those who enjoy the prestige and dispense the patronage of a national administration.
38
The view of many that it is the progressive or liberal element of the party that will presently advantage from this device does not prove that the device itself has any proper place in a truly liberal or progressive scheme of government. Who will come to possess this weapon and to whose advantage it will prove in the long run I am not foresighted enough to predict. But party control entrenched by disfranchisement and exclusion of nonconforming party members is a means which to my mind can not be justified by any end. In the interest of free government, we should foster the power and the will to be independent even on the part of those we may think to be independently wrong.
39
Candidates for elector, like those for Senator, of course, may announce to their constituents their policies and preferences, and assume a moral duty to carry them out if they are chosen. Competition in the primary between those of different views would forward the representative principle. But this plan effects a complete suppression of competition between different views within the party. All who are not ready to follow blindly anyone chosen by the national convention are excluded from the primary, and that, in practice, means also from the election.
40
It is not for me, as a judge, to pass upon the wisdom or righteousness of the political revolt this measure was designed to suppress. For me it is enough that, be it ever so benevolent and virtuous, the end cannot justify these means.
41
I would affirm the decision of the Supreme Court of Alabama.
1
U.S.Const., Amend. XII:
'The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;—The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;—The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. * * *'
2
Ala.Code 1940, Tit. 17, § 347:
'All persons who are qualified electors under the general laws of the State of Alabama, and who are also members of a political party entitled to participate in such primary election, shall be entitled to vote therein and shall receive the official primary ballot of that political party, and no other; but every state executive committee of a party shall have the right, power and authority to fix and prescribe the political or other qualifications of its own members, and shall, in its own way, declare and determine who shall be entitled and qualified to vote in such primary election, or to be candidates therein, or to otherwise participate in such political parties and primaries; and the qualifications of electors entitled to vote in such primary election shall not necessarily be the same as the qualifications for electors entitled to become candidates therein; * * *.'
3
See Merriam & Overacker, primary Elections (1928), pp. 69 73, 124, 125. Cf. State ex rel. Curyea v. Wells, 92 Neb. 337, 138 N.W. 165, 41 L.R.A.,N.S., 1088; Francis v. Sturgill, 163 Ky. 650, 174 S.W. 753.
4
This was not a unique delegation. In 1928 Merriam and Overacker cited ten other states which delegate to the party authorities the right to prescribe such qualifications, with or without a statutory statement of minimum qualifications; these ten were Delaware, Idaho, and the remainder of the 'solid South,' except North Carolina. See Merriam and Overacker, supra, note 3, at pp. 72—73. In 1948 Penniman reports the continued existence of these delegations in all these states except Idaho, which now apparently requires only that the candidate 'represent the principles' of the party and be duly registered in the appropriate precinct. 6 Idaho Code (Bobbs-Merrill 1948) §§ 34—605, 34—606, 34 614. See Penniman, Sait's American Parties and Elections (4th ed. 1948) p. 431. However, the situation has changed in several of those states: the South Carolina legislature apparently no longer regulates the conduct of primaries at all, see Acts S.C.1944, p. 2323, No. 810; and Texas and Florida have repealed their election Codes and enacted new ones which appear to lack any comparable provision, see The New Election Code, Vernon's Annotated Texas Statutes Service (1951), effective January 1, 1952; Fla.Laws 1951, c. 26870, F.S.A. § 97.01 et seq. In both Texas and Florida, the primary is open to party 'members'; the extent to which the party itself may prescribe membership qualifications is not explicitly set forth. But cf. §§ 103.111(3) and 103.121, Fla.Laws, 1951, F.S.A.
For provisions in the remaining states bearing on this delegation, see 2 Ark.Stat.Ann. (Bobbs-Merrill, 1947) § 3—205; 12 Ga.Code Ann. (Harrison, 1936) § 34—3218.2; Va.Code 1950 (Michie, 1949) §§ 24—367, 24—369; 3 Miss.Code Ann. (Harrison, 1943), § 3129; Del.Laws 1944—1945, c. 150, amending Rev.Code Del.1935, c. 58, 1782, § 14; La.Rev.Stat. 1950, Tit. 18, §§ 306, 309, LSA—R.S. 18:306, 18:309; La.Const.Ann. (Bobbs-Merrill, 1932) Art. 8, § 4.
5
Such a holding integrates the state and national party. See Cannon's Democratic Manual (1948):
'The Democratic National Committee is the permanent agency authorized to act in behalf of the party during intervals between Conventions. It is the creature of the National Convention and therefore subordinate to its control and direction. Between Conventions the Committee exercises such powers and authority as have been delegated specifically to it and is subject to the directions and instructions imposed by the Convention which created it.' P. 4.
'Duties and Powers of the Committee
'The duties and powers of the National Committee are derived from the Convention creating it, and while subject to variation as the Convention may provide, ordinarily include:
'8. Provision for the National Convention, involving:
'b. Authorization of call and determination within authority granted by last National Convention of representation from States, Territories and Districts; * * *.' Pp. 7—8.
6
See Penniman, supra, n. 4, cc. XIII, XVIII, especially at pp. 300, 416; Merriam and Overacker, supra, n. 3, at pp. 92—93.
7
Penniman, supra, pp. 425—426; Merriam and Overacker, supra, pp. 129—133.
8
E.g., § 4, c. 109, N.D.Laws of 1907, pp. 151, 153, discussed in State ex rel. McCue v. Blaisdell, 18 N.D. 55, 118 N.W. 141, 24 L.R.A.,N.S., 465. See 7 Fla.Stat.Ann. (Harrison & West, 1943) § 99.021 (pkt pt); Fla.Laws 1951, c. 26870, § 99.021, amending 7 Fla.Stat.Ann. (Harrison & West, 1943) § 102.29, discussed in Mairs v. Peters, Fla., 52 So.2d 793. Cf. 3 Miss.Code Ann.1942 (Harrison, 1943) § 3129; Ruhr v. Cowan, 146 Miss. 870, 112 So. 386. Cf. Va.Code 1950 (Michie, 1949) §§ 24—367, 24—369. See Westerman v. Mims, 111 Tex. 29, 227 S.W. 178, discussing Art. 3096 of Tex.Rev.Stat. of 1911, Vernon's Ann.Civ.St. art. 3110; cf. Love v. Wilcox, 119 Tex. 256, 28 S.W.2d 515, 70 A.L.R. 1484.
For an example of a pledge specifically directed toward primary candidates for the office of presidential elector, see the resolutions of the State Democratic Committee of Texas discussed in Carter v. Tomlinson, 149 Tex. 7, 227 S.W.2d 795; see also Love v. Taylor, Tex.Civ.App., 8 S.W.2d 795; McDonald v. Calhoun, 149 Tex. 232, 231 S.W.2d 656; cf. Seay v. Latham, 143 Tex. 1, 182 S.W.2d 251, 155 A.L.R. 180. See also the pledge required by the Democratic Party of Arkansas, discussed in Fisher v. Taylor, 210 Ark. 380, 196 S.W.2d 217.
Similar pledges, of course, are frequently exacted of voters in the primaries. See, e.g., State ex rel. Adair v. Drexel, 74 Neb. 776, 105 N.W. 174; Morrow v. Wipf, 22 S.D. 146, 115 N.W. 1121; Ladd v. Holmes, 40 Or. 167, 66 P. 714. See Penniman, supra, note 4, at p. 431; Merriam and Overacker, supra, note 4, at pp. 124—129.
9
See Seay v. Latham, 143 Tex. 1, 182 S.W.2d 251, 155 A.L.R. 180. This was a Texas case that allowed the Democratic Party of Texas to withdraw its nomination of presidential electors when they announced their determination to vote against the nominees of the party as made by the National Convention. The names of others were substituted. The court said:
'A political party is a voluntary association, instituted for political purposes. It is organized for the purpose of effectuating the will of those who constitute its members, and it has the inherent power of determining its own policies.' 143 Tex. at page 5, 182 S.W.2d at page 253. See Carter v. Tomlinson, 149 Tex. 7, 227 S.W.2d 795, 798; 29 Tex.L.Rev. 378.
10
The court found support for its conclusion in the reasoning of an Opinion of the Justices in answer to questions propounded by the Governor of Alabama in 1948. Opinion of the Justices, 250 Ala. 399, 34 So.2d 598. One question was 'Would an elector chosen at the general election in November 1948 have a discretion as to the persons for whom he could cast his ballot for President and Vice-President?' Alabama had amended § 226 of Title 17 of its Code, relating to the meeting and balloting of its electoral college, by adding 'and shall cast their ballots for the nominee of the national convention of the party by which they were elected.' That opinion said:
'The language of the Federal Constitution clearly shows that it was the intention of the framers of the Federal Constitution that the electors chosen for the several states would exercise their judgment and discretion in the performance of their duty in the election of the president and vice-president and in determining the individuals for whom they would cast the electoral votes of the states. History supports this interpretation without controversy.' Id., 250 Ala. at page 400, 34 So.2d at page 600. See McPherson v. Blacker, 146 U.S. 1, 36, 13 S.Ct. 3, 11, 36 L.Ed. 869.
See also Willbern, Discretion of Presidential Electors, 1 Ala.L.Rev. 40.
On this review the right to a place on the primary ballot only is in contest.
11
As both constitutional provisions long antedated the party primary system, it is not to be expected that they or their legislative history would illumine this issue. They do not. Discussion in the Constitutional Convention as to the manner of election of the President resulted in the arrangement by which presidential electors were chosen by the state as its legislature might direct. McPherson v. Blacker, 146 U.S. 1, 28, 13 S.Ct. 3, 8, 36 L.Ed. 869.
The Twelfth Amendment was brought about as the result of the difficulties caused by the procedure set up under Art. II, § 1. Under that procedure, the electors of each state did not vote separately for President and Vice-President; each elector voted for two persons, without designating which office he wanted each person to fill. If all the electors of the predominant party voted for the same two men, the election would result in a tie, and be thrown into the House, which might or might not be sympathetic to that party. During the John Adams administration, we had a President and Vice-President of different parties, a situation which could not commend itself either to the Nation or to most political theorists.
The situation was manifestly intolerable. Accordingly the Twelfth Amendment was adopted, permitting the electors to vote separately for presidential and vice-presidential candidates. Under this procedure, the party electors could vote the regular party ticket without throwing the election into the House. Electors could be chosen to vote for the party candidates for both offices, and the electors could carry out the desires of the people, without confronting the obstacles which confounded the elections of 1796 and 1800. See 11 Annals of Congress 1289—1290, 7th Cong., 1st Sess. (1802).
12
U.S.Const., Art. II, § 1:
'* * * Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. * * *'
Twelfth Amendment, note 1, supra; In re Green, 134 U.S. 377, 379, 10 S.Ct. 586, 587, 33 L.Ed. 951; Burroughs v. U.S., 290 U.S. 534, 54 S.Ct. 287, 78 L.Ed. 484.
13
The Supreme Court of Alabama has just said that the Democratic Party of that state was thus affiliated with the national organization. See the excerpt from Ray v. Garner, in the text at note 5, supra.
14
There is also a suggestion that, since the Alabama primary is an integral part of the general election, the Fourteenth Amendment, which among other prohibitions forbids a state to exclude voters on account of their color, also forbids a state to exclude candidates because they refuse to pledge their votes. The answer to this suggestion is that the requirement of this pledge, unlike the requirement of color, is reasonably related to a legitimate legislative objective—namely, to protect the party system by protecting the party from a fraudulent invasion by candidates who will not support the party. See note 9, supra. In facilitating the effective operation of democratic government, a state might reasonably classify voters or candidates according to party affiliations, but a requirement of color, as we have pointed out before, is not reasonably related to any legitimate legislative objective. Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759. This requirement of a pledge does not deny equal protection or due process.
Furthermore, the Fifteenth Amendment directly forbids abridgment on account of color of the right to vote.
15
11 Annals of Congress 1289—1290, 7th Cong., 1st Sess. (1802):
'Under the Constitution electors are to vote for two persons, one of whom does not reside in the State of the electors; but it does not require a designation of the persons voted for. Wise and virtuous as were the members of the Convention, experience has shown that the mode therein adopted cannot be carried into operation; for the people do not elect a parson for an elector who, they know, does not intend to vote for a particular person as President. Therefore, practically, the very thing is adopted, intended by this amendment.'
S.Rep.No.22, 19th Cong., 1st Sess. (1826), p. 4:
'In the first election hold under the constitution, the people looked beyond these agents (electors), fixed upon their own candidates for President and Vice President and took pledges from the electoral candidates to obey their will. In every subsequent election, the same thing has been done. Electors, therefore, have not answered the design of their institution. They are not the independent body and superior characters which they were intended to be. They are not left to the exercise of their own judgment: on the contrary, they give their vote, or bind themselves to give it, according to the will of their constituents. They have degenerated into mere agents, in a case which requires no agency, and where the agent must be useless, if he is faithful, and dangerous, if he is not.' See 2 Story on the Constitution, § 1463 (5th ed., 1891).
16
McPherson v. Blacker, 146 U.S. 1, 36, 13 S.Ct. 3, 11, 36 L.Ed. 869:
'Doubtless it was supposed that the electors would exercise a reasonable independence and fair judgment in the selection of the chief executive, but experience soon demonstrated that, whether chosen by the legislatures or by popular suffrage on general ticket or in districts, they were so chosen simply to register the will of the appointing power in respect of a particular candidate.'
III Cyclopedia of American Government (Appleton, 1914) Presidential Elections by Albert Bushnell Hart, p. 8:
'In the three elections of 1788—89, 1792 and 1796 there was a liberal scattering of votes, 13 persons receiving votes in 1796; but in 1800 there were only five names votes on. As early as 1792 an understanding was established between the electors in some of the different states that they should combine on the same man; and from 1796 on there were always, with the exception of the two elections of 1820 and 1824, regular party candidates. In practice most of the members of the electoral colleges belonged to a party, and expected to support it; and after 1824 it became a fixed principle that the electors offered themselves for the choice of the voters or legislatures upon a pledge to vote for a predesignated candidate.'
17
E.g., Massachusetts:
Annotated Laws of Massachusetts, c. 54:
§ 43. Presidential electors, arrangement of names of candidates, etc.—The names of the candidates for presidential electors shall not be printed on the ballot, but in lieu thereof the surnames of the candidates of each party for president and vice president shall be printed thereon in one line under the designation 'Electors of president and vice president' and arranged in the alphabetical order of the surnames of the candidates for president, with the political designation of the party placed at the right of and in the same line with the surnames. A sufficient square in which each voter may designate by a cross (X) his choice for electors shall be left at the right of each political designation.'
See S.Doc.No.243, 78th Cong., 2d Sess. (1944), containing a summary of the state laws relating to nominations and election of presidential electors.
See Library of Congress, Legislative Reference Service, Proposed Reform of the Electoral College, 1950; Edward Stanwood, A History of the Presidency from 1788 to 1897 (1912), pp, 47, 48, 50, 51. The author shows the practice of an elector's announcing his preference and gives as alleged instance of violation.
See the comments on instruction of electors in State Law on the Nomination, Election and Instruction of Presidential Electors by Ruth C. Silva, 42 Amer.Pol. Science Rev. 523.
*
See The Federalist No. 68 (Earle ed. 1937), pp. 441—442:
'It was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. This end will be answered by committing the right of making it, not to any pree stablished body, but to men chosen by the people for the special purpose, and at the particular conjuncture.
'It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellowcitizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.'
| 12
|
343 U.S. 236
72 S.Ct. 666
96 L.Ed. 907
UNITED STATESv.ATLANTIC MUT. INS. CO. et al.
No. 450.
Argued and Submitted March 7, 1952.
Decided April 21, 1952.
Mr. James L. Morrisson, Washington, D.C., for petitioner.
Mr. Leonard J. Matteson, New York City, for respondents Farr Sugar Corp. et al.
Messrs. Cletus Keating, Edwin S. Murphy, Louis Gusmano, all of New York City, for respondent Belgian Overseas Transport S.A. etc.
Mr. Justice BLACK delivered the opinion of the Court.
1
Respondents are cargo owners1 who shipped goods on the steamship Nathaniel Bacon owned by petitioner, the United States, and operated as a common carrier of goods for hire. It collided with the Esso Belgium and respondents' cargo was damaged. The ships were also damaged. This litigation was brought in the District Court to determine liability for the damages suffered by the cargo owners and for the physical damage caused the ships. It was agreed in the District Court that:
2
(a) The collision was due to negligent navigation by employees of both ships. The cargo owners were in no way at fault.
3
(b) The Belgium, as one of two joint tortfeasors, must pay '100%' of damages suffered by the Bacon's cargo owners.
4
(c) Because of § 3 of the Harter Act2 and § 4(2) of the Carriage of Goods by Sea Act,3 the cargo owners are barred from directly suing the Bacon for cargo damages.
5
(d) Since the two ships were mutually at fault, the aggregate of all damages to both should be shared by both.4
6
(e) In computing the aggregate damages caused both ships, account should be taken of the cargo damages recovered from the Belgium by the cargo owners.
7
(f) The bill of lading issued by the Bacon to the cargo owners contained a 'Both-to-Blame' clause.5 This clause, if valid, requires the cargo owners to indemnify the carrier Bacon for any amounts the Bacon loses because damages recovered by the cargo owners from the Belgium are included in the aggregate damages divided between the two ships.
8
The only question presented to us is whether the 'Both-to-Blame' clause is valid. Respondent cargo owners contend that it is void and unenforceable as a violation of the long-standing rule of law which forbids common carriers from stipulating against the consequences of their own or their employees' negligence. Petitioner, the United States, contends that § 3 of the Harter Act, as substantially reenacted in § 4(2) of the Carriage of Goods by Sea Act, provides special statutory authorization permitting ocean carriers to deviate from the general rule and to stipulate against their negligence as they did here. The District Court held the clause valid. 90 F.Supp. 836. The Court of Appeals reversed. 191 F.2d 370. Deeming the question decided of sufficient importance to justify our review, this Court granted certiorari. 342 U.S. 913, 72 S.Ct. 359.
9
There is a general rule of law that common carriers cannot stipulate for immunity from their own or their agents' negligence. While this general rule was fashioned by the courts, it has been continuously accepted as a guide to common-carrier relationships for more than a century6 and has acquired the force and precision of a legislative enactment. Considering the relationship of the rule to the Harter Act, this Court said in 1901 that 'in view of the well-settled nature of the general rule at the time the statute was adopted, it must result that legislative approval was by clear implication given to the general rule as then existing in all cases where it was not changed.' The Kensington, 183 U.S. 263, 268—269, 22 S.Ct. 102, 104, 46 L.Ed. 190. Our question therefore is whether the language of the Harter Act, substantially reenacted in the Carriage of Goods by Sea Act, has carved out a special statutory exception to the general rule so as to permit a carrier to deprive its cargo owners of a part of the fruits of any judgment they obtain in a direct action against a noncarrying vessel that contributes to a collision.
10
Prior to the passage of the Harter Act in 1893, 46 U.S.C.A. § 190 et seq., cargo damages incurred in a both-to-blame collision could be recovered in full from either ship. The Atlas, 93 U.S. 302, 23 L.Ed. 863. The Harter Act, under some circumstances, took away the right of the cargo owner to sue his own carrier for cargo damages caused by the negligent navigation of the carrier's servants or agents. It did not deprive the cargo owner of his tort action against the noncarrying ship. The Chattahoochee, 173 U.S. 540, 549—550, 19 S.Ct. 491, 494, 495, 43 L.Ed. 801. Nor did the Harter Act go so far as to insulate the carrier from responsibility to another vessel for physical damages caused to the ship by negligent navigation of the carrier's servants or agents. In The Delaware, 161 U.S. 459, 471, 474, 16 S.Ct. 516, 522, 523, 40 L.Ed. 771, this Court declined to give the Harter Act such a broad interpretation even though the language itself, if 'broadly construed' and considered alone, would have justified such an interpretation. In addition, the Harter Act does not exonerate the carrier from its obligation to share with the noncarrier one-half the damages paid by the noncarrier to the cargo owners. The Chattahoochee, supra, 173 U.S. at pages 551—552, 19 S.Ct. at page 495; see also Aktieselskabet Cuzco v. The Sucarseco, 294 U.S. 394, 401—402, 55 S.Ct. 467, 470, 79 L.Ed. 942.
11
Apparently it was not until about forty years after the passage of the Harter Act that shipowers first attempted by stipulation to deprive cargo owners of a part of their recovery against noncarrying ships. See The W. W. Bruce, D.C., 14 F.Supp. 894, reversed on other grounds, 2 Cir., 94 F.2d 834. The present effort of shipowners appears to date from 1937 when the North Atlantic Freight Conference adpted the 'Both-to-Blame' clause.7 So far as appears, this is the first test of the legality of the clause that has appeared in the courts. When Congress passed the Carriage of Goods by Sea Act in 1936, 46 U.S.C.A. § 1300 et seq., it indicated no surpose to bring about a change in the long-existing relationships and obligations between carriers and shippers which would be relevant to the validity of the 'Both-to-Blame' clause. At that time all interested groups such as cargo owners, shipowners, and the representatives of interested insurance companies were before the congressional committees.8 Although petitioner and respondents both appear to find comfort in the language and the hearings of the 1936 Act, nothing in either persuades us that Congress intended to alter the Harter Act in any respect material to this controversy.
12
Petitioner argues that the clause does nothing more than remove an 'anomaly' which arises from this Court's construction of the Harter Act. It is said to be 'anomalous' to hold a carrier not liable at all if it alone is guilty of negligent navigation but at the same time to hold it indirectly liable for one-half the cargo damages if another ship is jointly negligent with it. Assuming for the moment that all rules of law must be symmetrical, we think it would be 'anomalous' to hold that a cargo owner, who has an unquestioned right under the law to recover full damages from a noncarrying vessel, can be compelled to give up a portion of that recovery to his carrier because of a stipulation exacted in a bill of lading. Moreover, there is no indication that either the Harter Act or the Carriage of Goods by Sea Act was designed to after the long-established rule that the full burden of the losses sustained by both ships in a both-to-blame collision is to be shared equally. Yet the very purpose of exacting this bill of lading stipulation is to enable one ship to escape its equal share of such losses by shifting a part of its burden to its cargo owners.
13
Here, once more, 'we think that legislative consideration and action can best bring about a fair accommodation of the diverse but related interests'9 of the varied groups who would be affected by permitting carriers to deviate from the controlling rule that without congressional authority they cannot stipulate against their own negligence or that of their agents or servants. If that rule is to be changed, the Congress, not the shipowners, should change it.10
14
Affirmed.
15
Mr. Justice FRANKFURTER, whom Mr. Justice BURTON joins, dissenting.
16
Only a few weeks ago this Court reversed a unanimous opinion of the Court of Appeals for the Fourth Circuit, Lilly v. C.I.R., 188 F.2d 269, which had held opposed to public policy, agreements whereby retailers of eyeglasses turned over a portion of the purchase price to the oculist who referred the customer to them. In so doing, 'we voice(d) no approval of the business ethics or public policy involved' in the agreements. Lilly v. C.I.R., 343 U.S. 90, 97, 72 S.Ct. 497, 501. This refusal to make our private views of right into the legal standards for the activities of men of affairs has increasingly characterized our decisions in the vague and shifting area of agreements challenged as unenforceable because offensive to what must be deemed to be legally controlling policy. 'In the absence of a plain indication of that (dominant public) policy through long governmental practice or statutory enactments, or of violations of obvious ethical or moral standards, this Court should not assume to declare contracts of the War Department contrary to public policy.' Muschany v. United States, 324 U.S. 49, 66—67, 65 S.Ct. 442, 451, 89 L.Ed. 744. No more unrestrained justification warrants courts to strike down private business agreements. Jedged by such a standard, the agreements before us should be enforced.
17
Before 1893, when the Harter Act1 was passed, the obligations of seagoing carriers with respect to passengers and cargo were defined by this Court in the exercise of its admiralty and maritime jurisdiction from case to case. Toward cargo the ocean carrier stood in the relation of an insurer, liable for any damage save that caused by act of God; and to passengers it owed the duty of highest care. Only by holding carriers to this mark was it thought that safety in operation could in achieved and undue imposition by carriers eliminated.
18
The carriers sought to avoid these obligations by special contracts or stipulations in bills of lading, relieving them of liabilities which they would incur under the rules laid down by the courts in the absence of such agreements. Although the courts upheld some such efforts, they reserved the right to refuse to enforce contractual exemptions from liability which trenched upon judicial notions of public policy.2 The most important limit thus set to the power of the carrier to contract out of his commonlaw liability was the rule that courts would strike down any stipulation which relieved the carrier for hire from liability for damage caused by its own negligence. Applied first by this Court to the railroads, New York Central R. C. v. Lockwood, 17 Wall. 357, 21 L.Ed. 627, the doctrine was extended to carriers by sea a few years later in Liverpool & Great Western Steam Co. v. Phenix Ins. Co., 129 U.S. 397, 9 S.Ct. 469, 32 L.Ed. 788. Underlying the decision was the premise that such an agreement, if enforced, would tend to relax the vigilance and care in seamanship which the threat of liability encouraged. See New York Central R. Co. v. Lockwood, supra, 17 Wall. at pages 371, 377—378, 21 L.Ed. 627.
19
The process by which this body of rules and exceptions was developed is typical of the growth of judge-made law in our system. Without legislative guidance, judges in deciding cases are necessarily thrown upon their own resources in ascertaining the public policy applicable to particular situations.
20
The judge's function and responsibility become otherwise once the legislature has formulated public policy. Courts are then no longer at large. They must carry out the defined policy and disregard their own determination of what the public good demands. See Twin City Pipe Line Co. v. Harding Glass Co., 283 U.S. 353, 357, 51 S.Ct. 476, 477, 75 L.Ed. 1112. By the Harter Act, Congress supplanted the judicial view of public policy with its own ideas. The legislation, as is so often the case, represents a compromise among competing interests. The carriers were relieved of their judicially imposed insurers' liability. In return they were required to forego the possibility of avoiding by contract certain specified obligations. Finally, if those obligations were in fact performed,3 recovery against the carrier for damages to cargo due to faulty navigation was altogether disallowed. This provision, embodied in § 3 of the Harter Act,4 necessarily expressed a rejection of the judicially conceived premise as to public policy which was the foundation of the decisions which antedated legislation, namely, that liability for negligent navigation was a necessary spur to the carrier's exercise of care. Since that premise has been discarded by Congress, no justification remains for us to revive it as a basis for striking down the agreement here in question. 'The Legislature has the power to decide what the policy of the law shall be, and if it has intimated its will, however indirectly, that will should be recognized and obeyed. The major premise of the conclusion expressed in a statute, the change of policy that induces the enactment, may not be set out in terms, but it is not an adequate discharge of duty for courts to say: We see what you are driving at, but you have not said it, and therefore we shall go on as before.' Johnson v. United States, 1 Cir., 163 F. 30, 32, 18 L.R.A.,N.S., 1194, per Holmes, J.; see Landis, Statutes and the Sources of Law, in Harvard Legal Essays, 213.
21
To be sure, the Harter Act did not in terms prescribe that the carrier should have recovery over against cargo for the amount of its liability to a non-carrying ship, attributable to payments made by the non-carrier for damage to cargo in a collision for which both vessels were to blame. Hence we held in The Chattahoochee, 173 U.S. 540, 19 S.Ct. 491, 43 L.Ed. 801, that no such recovery was available to a carrier by mere force of the Act. Similarly, and in the same period shortly after the passage of the Harter Act, we held that since the Act did not specify that the carrier should participate in a general average5 when the peril to which it related was the result of the carrier's faulty navigation, no such participation could be had if the carrier had not stipulated for it. The Irrawaddy, 171 U.S. 187, 18 S.Ct. 831, 43 L.Ed. 130. But when a carrier did contract for such participation, the force of the Harter Act required this Court to sustain the stipulation. The Jason, 225 U.S. 32, 32 S.Ct. 560, 56 L.Ed. 969.
22
'Instead of merely sanctioning covenants and agreements limiting (the shipowner's) liability, Congress went further and rendered such agreements unnecessary by repealing the liability itself, declaring that if the shipowner should exercise due diligence to make the vessel in all respects seaworthy, and properly manned, equipped, and supplied, neither the vessel, her owner or owners, etc., should be responsible for damage or loss resulting from faults or errors in navigation or in the management of the vessel, etc., etc. The antithesis is worth noting. Congress says to the shipowner: 'In certain respects you shall not be relieved from the responsibilities incident to your public occupation as a common carrier, although the cargo owners agree that you shall be relieved; in certain other respects (provided you fulfil conditions specified) you shall be relieved from responsibility even without a stipulation from the owners of cargo." The Jason, supra, 225 U.S. at pages 50—51, 32 S.Ct. at page 562.
23
'In our opinion, so far as the Harter act has relieved the shipowner from responsibility for the negligence of his master and crew, it is no longer against the policy of the law for him to contract with the cargo owners for a participation in general average contribution growing out of such negligence; * * *.' Id., 225 U.S. at page 55, 32 S.Ct. at page 564.
24
The present case bears exactly the same relation to The Chattahoochee that The Jason bore to The Irrawaddy. To revive notions of public policy which Congress rejected in 1893, disregards the appropriate considerations that governed application of the Harter Act in the earlier decisions.6 To derive from a statute, which relieves a ship entirely of liability to cargo when the ship is wholly to blame for the loss, an implied restriction against a voluntary arrangement for relief from liability when the ship is only half to blame, is surely an odd use to which to put such a statute. When this Court does fashion a rule of public policy it ought to be less perverse and illogical than that in its operation.
25
It is suggested, however, that the real meaning of the Harter Act is that carriers are remitted to Congress for whatever immunities they were to be granted. That is a most doctrinaire view to take of the legislation, and The Jason, supra, disposes of the notion.7 What Congress did was to legislate generally about the relations between carrier and cargo in seagoing commerce. Generally, but not comprehensively as though it formulated a maritime code excluding all consensual arrangements within the industry. That legislation 'indicate(s) or require(s) as its justification a change in the policy of the law, although it expresses that change only in the specific cases most likely to occur to the mind.' Johnson v. United States, supra, 163 F. at page 32. We should heed the admonition of Mr. Justice Holmes 'that courts in dealing with statutes sometimes have been too slow to recognize that statutes even when in terms covering only particular cases may imply a policy different from that of the common law, and therefore may exclude a reference to the common law for the purpose of limiting their scope.' Panama R. Co. v. Rock, 266 U.S. 209, 215—216, 45 S.Ct. 58, 60, 69 L.Ed. 250, Holmes, J., with Taft, C.J., McKenna and Brandeis, JJ., dissenting. This is such a statute. I would recognize that the Congressional pronouncement of public policy—when it exempted carriers from liability for faulty navigation—precludes our striking down the clause here in issue.
1
Certain insurance companies are parties to this suit as subrogees of their insured cargo owners. Some cargo owners were not insured.
2
27 Stat. 445, 46 U.S.C. § 192, 46 U.S.C.A. § 192. This section provides that if due diligence is exercised by the shipowner in making the ship seaworthy and properly manned, equipped, and supplied, then 'neither the vessel, her owner or owners, agent, or charterers, shall become or be held responsible for damage or loss resulting from faults or errors in navigation or in the management of said vessel * * *.'
3
49 Stat. 1210, 46 U.S.C. § 1304(2), 46 U.S.C.A. § 1304(2). This section provides that 'neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from—(a) Act, neglect, or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship; * * *.'
4
The shipowners have stipulated that in this case the Esso Belgium is to bear two-thirds and the Nathaniel Bacon one-third of the total damages, although the normal admiralty rule requires an equal division of damages. Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282, 284, 72 S.Ct. 277, 279.
5
The clause reads as follows:
'If the ship comes into collision with another ships as a result of the negligence of the other ship and any act, neglect or default of the Master, mariner, pilot or the servants of the Carrier in the navigation or in the management of the ship, the owners of the goods carried hereunder will indemnify the Carrier against all loss or liability to the other or non-carrying ship or her owners in so far as such loss or liability represents loss of, or damage to, or any claim whatsoever of the owners of said goods, paid or payable by the other or non-carrying ship or her owners to the owners of said goods and set-off, recouped or recovered by the other or non-carrying ship or her owners as part of their claim against the carrying ship or Carrier.'
6
See, e.g., Liverpool & Great Western Steam Co. v. Phenix Ins. Co., 1889, 129 U.S. 397, 438—444, 9 S.Ct. 469, 470—473, 32 L.Ed. 788; Knott v. Botany Worsted Mills, 1900, 179 U.S. 69, 71, 21 S.Ct. 30, 45 L.Ed. 90; New York Central R. Co. v. Lockwood, 1873, 17 Wall. 357, 21 L.Ed. 627; Boston & Maine R.R. v. Piper, 1918, 246 U.S. 439, 445, 38 S.Ct. 354, 355, 62 L.Ed. 820; The Ansaldo San Giorgio I. v. Rheinstrom Bros. Co., 1935, 294 U.S. 494, 496, 55 S.Ct. 483, 484, 79 L.Ed. 1016. And see cases collected in 9 Am.Jur. 874—877.
7
Robinson, Admiralty, 872, 873; Knaugh, Ocean Bills of Lading (3d ed. 1947), 95, 136, 175.
8
Hearings before Senate Committee on Commerce on S. 1152, 74th Cong., 1st Sess.
9
Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282, 286, 72 S.Ct. 277, 280.
10
We have not overlooked the argument that this bill of lading stipulation should be upheld because of this Court's holding and opinion in The Jason, 225 U.S. 32, 32 S.Ct. 560, 56 L.Ed. 969. The Jason case upheld a stipulation that both shipowner and cargo owner should contribute in general average on account of sacrifices and expenses necessarily incurred by the master of the ship in order to preserve the cargo as a whole. Moreover, this general average clause 'was sustained because it admitted the shipowner to share in general average only in circumstances where by the Harter Act he was relieved from responsibility.' Aktieselskabet Cuzco v. The Sucarseco, 294 U.S. 394, 403, 55 S.Ct. 467, 471, 79 L.Ed. 942. Here the shipowner attempted to relieve itself from responsibility for negligence of its employees in connection with damages inflicted on another ship—'circumstances where by the Harter Act he was (not) relieved from responsibility.'
1
Act of Feb 13, 1893, 27 Stat. 445. The Act has now been superseded by the Carriage of Goods by Sea Act of 1936, 49 Stat. 1207, 46 U.S.C. § 1300 et seq., 46 U.S.C.A. § 1300 et seq., but any changes are not relevant to the issues here involved.
2
The courts based this reservation upon the observation that such contracts were not in fact consensual agreements. The shipper had little choice but to accept the carriers' terms. See e.g., New York Central R. Co. v. Lockwood, 17 Wall. 357, 379, 21 L.Ed. 627; Liverpool & Great Western Steam Co. v. Phenix Ins. Co., 129 U.S. 397, 441, 9 S.Ct. 469, 471, 32 L.Ed. 788. This circumstance did not necessarily void the agreement, since many stipulations were upheld. But it provided justification for refusing to enforce those which offended judicially pronounced public policy.
3
This proviso was eliminated by the Carriage of Goods by Sea Act of 1936, 49 Stat. 1207, 1210, 46 U.S.C. § 1304, 46 U.S.C.A. § 1304.
4
27 Stat. 445.
5
The general average is a doctrine of maritime law which provides that where a portion of ship or cargo is sacrificed to save the residue from peril of shipwreck, each owner of property saved contributes in proportion to the value of that property to make up the loss of those whose property has been sacrificed for the common benefit. It was characteristic of Dean James Barr Ames's power of fertile generalization to find in the maritime doctrine of general average manifestation of the more comprehensive quasi-contractual principle against unjust enrichment.
6
Reliance by the Court on The Kensington, 183 U.S. 263, 22 S.Ct. 102, 46 L.Ed. 190, is surely misplaced, and the quotation from it must be put in its setting. That was a case in which recovery was sought for damage to a passenger's baggage, although the ticket contained a stipulation against the carrier's liability. The Court noted that the Harter Act immunity from liability for negligence applied only to vessels 'when engaged in the classes of carriage coming within the terms of the statute'. Id., 183 U.S. at page 268, 22 S.Ct. at page 104. Without deciding whether passengers' baggage was such a class of carriage, the Court struck down the stipulation on the ground that if the Harter Act applied, the agreement was void as violative of the Act in that it sought immunity for negligent stowage, specifically forbidden by the Act; if the carriage of passengers' baggage was not among the classes exempted from liability by the Act, then of course, the cases voiding such stipulations with respect to baggage retained their force. Certainly a decision affirming the continued applicability of these cases as to baggage, goods for which Congress has not withdrawn carrier liability for negligence, and in any event not for negligent stowage, is totally inapposite to the question whether pre-existing case law should be applied to cargo, where Congress has granted the carrier immunity from such liability.
7
But even if it did not, the argument appears to be drawn from the blue. It would have basis in reality if Congress had, by the Harter Act, carved an exception from a pre-existing rule outlawing all agreements between shipper and carrier regarding liability. The general prohibition would continue in force because the Harter Act would have been a defined, limited qualification. But there was no such rule, either judge-made or statutory. Congress had taken no action. And this Court did not outlaw such agreements generally. It struck down specific agreements for specific reasons grounded in its view of public policy. That premise of policy was denied validity by the Harter Act. It smacks of the fanciful to suggest that what Congress really did was to raise a proviso to an existing absolute rule based on that premise.
| 78
|
343 U.S. 341
72 S.Ct. 699
96 L.Ed. 988
MADSENv.KINSELLA.
No. 411.
Argued Jan. 8, 1952.
April 28, 1952.
[Syllabus from pages 341-342 intentionally omitted]
Mr. Joseph S. Robinson, New York City, for petitioner.
Mr. Robert W. Ginnane, Washington, D.C., for respondent.
Mr. Justice BURTON delivered the opinion of the Court.
1
The principal question here is whether a United States Court of the Allied High Commission for Germany had jurisdiction, in 1950, to try a civilian citizen of the United States, who was the dependent wife of a member of the United States Armed Forces, on a charge of murdering her husband in violation of § 211 of the German Criminal Code. The homicide occurred in October, 1949, within the United States Area of Control in Germany. For the reasons hereafter stated, we hold that such court had that jurisdiction.
2
The present proceeding originates with a petition for a writ of habeas corpus filed by petitioner, Yvette J. Madsen, in the United States District Court for the Southern District of West Virginia, seeking her release from the Federal Reformatory for Women in West Virginia where she is serving a sentence imposed by a United States Court of the Allied High Commission for Germany. She contends that her confinement is invalid because the court which convicted and sentenced her had no jurisdiction to do so. The District Court, after a hearing based on exhibits and agreed facts, discharged the writ and remanded petitioner to the custody of the respondent warden of the reformatory. D.C., 93 F.Supp. 319. The Court of Appeals affirmed. 4 Cir., 188 F.2d 272. Because of the importance and novelty of the jurisdictional issues raised, we granted certiorari. 342 U.S. 865, 72 S.Ct. 115.
3
I. Petitioner's status in Germany.—Petitioner is a native-born citizen of the United States who lawfully entered the American Zone of Occupied Germany in 1947 with her husband, Lieutenant Madsen of the United States Air Force. In 1949, she resided there, with him, in a house requisitioned for military use, furnished and maintained by military authority. She was permitted to use the facilities of the United States Army maintained there for persons in its service and for those serving with or accompanying the United States Armed Forces. In brief, her status was that of a civilian dependent wife of a member of the United States Armed Forces which were then occupying the United States Area of Control in Germany.
4
October 20, 1949, following her fatal shooting of her husband at their residence at Buchschleg, Kreis Frankfurt, Germany, she was arrested there by the United States Air Force Military Police. On the following day, before a 'United States Military Government Court,'1 she was charged with the murder of her husband in violation of § 211 of the German Criminal Code.2 In February, 1950, she was tried by 'The United States Court of the Allied High Commission for Germany, Fourth Judicial District.'3 That court was composed of three United States civilians, two of whom had been appointed as district judges and one as a magistrate by or under the authority of the Military Governor of the United States Area of Control.4 The court adjudged her guilty and sentenced her to 15 years in the Federal Reformatory for Women at Alderson, West Virginia, or elsewhere as the Secretary of the Army might direct. In May, the 'Court of Appeals of the United States Courts of the Allied High Commission for Germany,' composed of five United States civilians appointed by the Military Governor of the Area,5 affirmed the judgment but committed her to the custody of the Attorney General of the United States or his authorized representative. The Director of the United States Bureau of Prisons designated the Federal Reformatory for Women at Alderson, West Virginia, as the place for her confinement.6
5
II. Both United States courts-martial, and United States Military Commissions or tribunals in the nature of such commissions, had jurisdiction in Germany in 1949—1950 to try persons in the status of petitioner on the charge against her. Petitioner does not here attack the merits of her conviction nor does she claim that any non-military court of the United States or Germany had jurisdiction to try her.7 It is agreed by the parties to this proceeding that a regularly convened United States general court-martial would have had jurisdiction to try her. The United States, however, contends, and petitioner denies, that the United States Court of the Allied High Commission for Germany, which tried her, also had jurisdiction to do so. In other words, the United States contends that its courts-martial's jurisdiction was concurrent with that of its occupation courts, whereas petitioner contends that it was exclusive of that of its occupation courts.
6
The key to the issue is to be found in the history of United States military commissions8 and of United States occupation courts in the nature of such commissions. Since our nation's earliest days, such commissions have been constitutionally recognized agencies for meeting many urgent governmental responsibilities related to war.9 They have been called our commonlaw war courts.10 They have taken many forms and borne many names.11 Neither their procedure nor their jurisdiction has been prescribed by statute. It has been adapted in each instance to the need that called it forth. See In re Yamashita, 327 U.S. 1, 18—23, 66 S.Ct. 340, 349—351, 90 L.Ed. 499.
7
In the absence of attempts by Congress to limit the President's power, it appears that, as Commander-in-Chief of the Army and Navy of the United States, he may, in time of war, establish and prescribe the jurisdiction and procedure of military commissions, and of tribunals in the nature of such commissions, in territory occupied by Armed Forces of the United States. His authority to do this sometimes survives cessation of hostilities.12 The President has the urgent and infinite responsibility not only of combating the enemy but of governing any territory occupied by the United States by force of arms.13 The policy of Congress to refrain from legislating in this uncharted area does not imply its lack of power to legislate. That evident restraint contrasts with its traditional readiness to 'make Rules for the Government and Regulation of the land and naval Forces; * * *.'14 Under that clause Congress has enacted and repeatedly revised the Articles of War which have prescribed, with particularity, the jurisdiction and procedure of United States courts-martial.
8
Originally Congress gave to courts-martial jurisdiction over only members of the Armed Forces and civilians rendering functional service to the Armed Forces in camp or in the field.15 Similarly the Articles of War at first dealt with nonmilitary crimes only by surrendering the accused to the civil authorities. Art. 33, American Articles of War of 1806, Winthrop's Military Law and Precedents (22d ed. 1920 reprint) 979. However, in 1863, this latter jurisdiction was enlarged to include many crimes 'committed by persons who are in the military service of the United States * * *.'16 Still it did not cover crimes committed by civilians who, like petitioner, were merely accompanying a member of the Armed Forces.
9
Finally, in 1916, when Congress did revise the Articles of War so as to extend the jurisdiction of courts-martial to include civilian offenders in the status of petitioner, it expressly preserved to 'military commissions, provost courts, or other military tribunals' all of their existing concurrent jurisdiction by adding a new Article which read in part as follows:
10
'II. COURTS-MARTIAL.
11
'C. JURISDICTION.
12
'Art. 15. Not exclusive.—The provisions of these articles conferring jurisdiction upon courts-martial shall not be construed as depriving military commissions, provost courts, or other military tribunals of concurrent jurisdiction in respect of offenders or offenses that by the law of war may be lawfully triable by such military commissions, provost courts, or other military tribunals.' 39 Stat. 651, 652, 653.17
13
Article 15 thus forestalled precisely the contention now being made by petitioner. That contention is that certain provisions, added in 1916 by Articles 2 and 12 extending the jurisdiction of courts-martial over civilian offenders and over certain nonmilitary offenses, automatically deprived military commissions and other military tribunals of whatever existing jurisdiction they then had over such offenders and offenses. Articles 2 and 12, together, extended the jurisdiction of courts-martial so as to include 'all persons accompanying or serving with the armies of the United States without the territorial jurisdiction of the United States * * *.'18 The 1916 Act also increased the nonmilitary offenses for which civilian offenders could be tried by courts-martial.19 Article 15, however, completely disposes of that contention. It states unequivocally that Congress has not deprived such commissions or tribunals of the existing jurisdiction which they had over such offenders and offenses as of August 29, 1916. 39 Stat. 653, 670. See In re Yamashita, 327 U.S. 1, 66 S.Ct. 340, 90 L.Ed. 499, and Ex parte Quirin, 317 U.S. 1, 63 S.Ct. 1, 87 L.Ed. 3.
14
The legislative history strengthens the Government's position. During the consideration by Congress of the proposed Articles of War, in 1916, Judge Advocate General of the Army Crowder sponsored Article 15 and the authoritative nature of his testimony has been recognized by this Court. In re Yamashita, supra, 327 U.S. at page 19 note, and at pages 65, 67—71, 66 S.Ct. at pages 350, 371—374. Before the Senate Subcommittee on Military Affairs he said:
15
'Article 15 is new. We have included in article 2 as subject to military law a number of persons who are also subject to trial by military commission. A military commission is our commonlaw war court. It has no statutory existence, though it is recognized by statute law. As long as the articles embraced them in the designation 'persons subject to military law,' and provided that they might be tried by court-martial, I was afraid that, having made a special provision for their trial by court-martial, it might be held that the provision operated to exclude trials by military commission and other war courts; so this new article was introduced. * * *'
16
'It just saves to these war courts the jurisdiction they now have and makes it a concurrent jurisdiction with courts-martial, so that the military commander in the field in time of war will be at liberty to employ either form of court that happens to be convenient.' S.Rep.No. 130, 64th Cong., 1st Sess. 40.20
17
The concurrent jurisdiction thus preserved is that which 'by statute or by the law of war may be triable by such military commissions, provost courts, or other military tribunals.' (Emphasis supplied.) 39 Stat. 653, 41 Stat. 790, 10 U.S.C. § 1486, 10 U.S.C.A. § 1486. The 'law of war' in that connection includes at least that part of the law of nations which defines the powers and duties of beligerent powers occupying enemy territory pending the establishment of civil government.21 The jurisdiction exercised by our military commissions in the examples previously mentioned extended to nonmilitary crimes, such as murder and other crimes of violence, which the United States as the occupying power felt it necessary to suppress. In the case of In re Yamashita, 327 U.S. 1, 20, 66 S.Ct. 340, 350, following a quotation from Article 15, this Court said, 'By thus recognizing military commissions in order to preserve their traditional jurisdiction over enemy combatants unimpaired by the Articles, Congress gave sanction, as we held in Ex parte Quirin, to any use of the military commission contemplated by the common law of war.'22 The enlarged jurisdiction of the courts-martial therefore did not exclude the concurrent jurisdiction of military commissions and of tribunals in the nature of such commissions.
18
III. The United States Courts of the Allied High Commission for Germany were, at the time of the trial of petitioner's case, tribunals in the nature of military commissions conforming to the Constitution and laws of the United States.—Under the authority of the President as Commander-in-Chief of the United States Armed Forces occupying a certain area of Germany conquered by the allies, the system of occupation courts now before us developed gradually. The occupation courts in Germany are designed especially to meet the needs of law enforcement in that occupied territory in relation to civilians and to nonmilitary offenses. Those courts have been directed to apply the German Criminal Code largely as it was theretofore in force. (See Appendix, infra, 72 S.Ct. 711 et seq., entitled 'Chronology of Establishment of United States Military Government Courts and Their Jurisdiction Over Civilians in the United States Area of Control in Germany 1945 1950.') The President, as Commander-in-Chief of the Army and Navy, in 1945 established, through the Commanding General of the United States Forces in the European Theater, a United States Military Government for Germany within the United States Area of Control. Military Government Courts, in the nature of military commissions, were then a part of the Military Government. By October 20, 1949, when petitioner was alleged to have committed the offense charged against her, those courts were known as United States Military Government Courts. They were vested with jurisdiction to enforce the German Criminal Code in relation to civilians in petitioner's status in the area where the homicide occurred.
19
September 21, 1949, the occupation statute had taken effect. Under it the President vested the authority of the United States Military Government in a civilian acting as the United States High Commissioner for Germany. He gave that Commissioner 'authority, under the immediate supervision of the Secretary of State (subject, however, to consultation with and ultimate direction by the President), to exercise all of the governmental functions of the United States in Germany (other than the command of troops) * * *.' Executive Order 10062, June 6, 1949, 22 U.S.C.A. § 901 note, 14 Fed.Reg. 2965, Appendix, 72 S.Ct. 713; Office of the United States High Commissioner for Germany, Staff Announcement No. 1, September 21, 1949, Appendix, 72 S.Ct. 714. Under the Transitional Provisions of Allied High Commission, Law No. 3, Article 5, 14 Fed.Reg. 7458, Appendix, 72 S.Ct. 714, preexisting legislation was applied to the appropriate new authorities. Finally by Allied High Commission, Law No. 1, Article 1, 15 Fed.Reg. 2086, Appendix, 72 S.Ct. 715, effective January 1, 1950, the name of the 'United States Military Government Courts for Germany' was changed to 'United States Courts of the Allied High Commission for Germany.' They derived their authority from the President as occupation courts, or tribunals in the nature of military commissions, in areas still occupied by United States troops. Although the local government was no longer a 'Military Government,' it was a government prescribed by an occupying power and it depended upon the continuing military occupancy of the territory.
20
The government of the occupied area thus passed merely from the control of the United States Department of Defense to that of the United States Department of State. The military functions continued to be important and were administered under the direction of the Commander of the United States Armed Forces in Germany. He remained under orders to take the necessary measures, on request of the United States High Commissioner, for the maintenance of law and order and to take such other action as might be required to support the policy of the United States in Germany. Executive Order 10062, supra.
21
The judges who served on the occupation courts were civilians, appointed by the United States Military Governor for Germany, and thereafter continued in office or appointed by the United States High Commissioner for Germany. Their constitutional authority continued to stem from the President. The members of the trial court were designated by the Chief Presiding District Judge as a panel to try the case. The volume of business, the size of the area, the number of civilians affected, the duration of the occupation and the need for establishing confidence in civilian procedure emphasized the propriety of tribunals of a nonmilitary character.23 With this purpose, the Military Government Courts for Germany, substantially from their establishment, have had a less military character than that of courts-martial.24 In 1948, provision was made for the appointment of civilian judges with substantial legal experience. The rights of individuals were safeguarded by a code of criminal procedure dealing with warrants, summons, preliminary hearings, trials, evidence, witnesses, findings, sentences, contempt, review of cases and appeals.25 This subjected German and United States civilians to the same procedures and exhibited confidence in the fairness of those procedures.26
22
It is suggested that, because the occupation statute took effect September 21, 1949, whereas the crime charged occurred October 20, 1949, the constitutional authority for petitioner's trial by military commission expired before the crime took place. Such is not the case. The authority for such commissions does not necessarily expire upon cessation of hostilities or even, for all purposes, with a treaty of peace. It may continue long enough to permit the occupying power to discharge its responsibilities fully. Santiago v. Nogueras, 214 U.S. 260, 29 S.Ct. 608, 53 L.Ed. 989; Neely v. Henkel, 180 U.S. 109, 124, 21 S.Ct. 302, 307, 45 L.Ed. 448; Burke v. Miltenberger, 19 Wall. 519, 22 L.Ed. 158; Leitensdorfer v. Webb, 20 How. 176, 15 L.Ed. 891; Cross v. Harrison, 16 How. 164, 14 L.Ed. 889.27
23
IV. Petitioner and the offense charged against her came within the jurisdiction assigned to the court which tried her. Under United States Military Government Ordinance No. 31, August 18, 1948, Article 7, 14 Fed.Reg. 126, Appendix, infra, 72 S.Ct. p. 712, the United States gave its Military Government District Courts 'criminal jurisdiction over all persons in the United States Area of Control except persons, other than civilians, who are subject to military, naval or air force law and are serving with any forces of the United Nations.' It thus excepted from the jurisdiction of those occupation courts military men and women who were subject to military law but expressly gave those courts jurisdiction over civilian men and women who were subject to military law. Article of War 2(d) further defined 'any person subject to military law' as including 'all persons accompanying or serving with the armies of the United States without the territorial jurisdiction of the United States * * *.'28 This included petitioner.
24
Article 7 of United States Military Government Ordinance No. 31 further provided, however, that 'No person subject to military law of the United States shall be brought to trial for any offense except upon authorization of the Commander-in-Chief, European Command.' 14 Fed.Reg. 126, Appendix, infra, 72 S.Ct. p. 712. That authorization appears in the official correspondence relating to the case of Wilma B. Ybarbo. The correspondence includes a written endorsement from the proper authority, dated December 11, 1948, covering not only the Ybarbo case but also the case 'of any dependent of a member of the United States Armed Forces * * *.' See Appendix, infra, 72 S.Ct. p. 713.
25
The applicability of the German Criminal Code to petitioner's offense springs from its express adoption by the United States Military Government. The United States Commanding General, in his Proclamation No. 2, September 19, 1945, stated that, except as abrogated, suspended or modified by the Military Government or by the Control Council for Germany, 'the German law in force at the time of the occupation shall be applicable in each area of the United States Zone of Occupation * * *.' 12 Fed.Reg. 6997, Appendix, infra, 72 S.Ct. p. 711.29 Section 211 of the German Criminal Code accordingly was applicable to petitioner on October 20, 1949. The United States also expressly required that its civilians be tried by its occupation courts rather than by the German courts. United States Military Government Law No. 2, German courts, Art. VI(i)(c) and (d), 12 Fed.Reg. 2191, 2192, Appendix, infra, 72 S.Ct. p. 712. United States Military Government Ordinance No. 2, Art. II(2)(iii), 12 Fed.Reg. 2190—2191, Appendix, infra, 72 S.Ct. p. 711.
26
The jurisdiction of the United States Courts of the Allied High Commission for Germany to try petitioner being established, the judgment of the Court of Appeals affirming the discharge of the writ of habeas corpus for petitioner's release from custody is affirmed.
27
Affirmed.
28
APPENDIX.
29
Chronology of Establishment of United States Military Government Courts and Their Jurisdiction Over Civilians in the United States Area of Control in Germany 1945—1950.
30
(Emphasis supplied throughout except in headings.)
31
1. June 5, 1945.—Allied Powers assumed 'supreme authority with respect to Germany, including all the powers possessed by the German Government, the High Command and any state, municipal, or local government or authority. The assumption, for the purposes stated above, of the said authority and powers does not effect the annexation of Germany.' Declaration by Commanding Generals representing the United States, the Soviet Union, Great Britain and the French Provisional Government, THE AXIS IN DEFEAT—A Collection of Documents on American Policy Toward Germany and Japan, published by the United States Department of State, p. 63.
32
2. July 14, 1945.—Commanding General, United States Armed Forces in Europe, established a Military Government under his authority in the United States Zone of Occupation—Military Government—United States Area of Control, Proclamation No. 1, 12 Fed.Reg. 6997.
33
3. September 19, 1945.—Commanding General, United States Forces, European Theater, proclaimed:
34
'Article II. Except as heretofore abrogated, suspended or modified by Military Government or by the Control Council for Germany, the German law in force at the time of the occupation shall be applicable in each area of the United States Zone of Occupation, until repealed by, or superseded by a new law enacted by the Control Council for Germany, or by Military Government or the states hereby constituted or by other competent authority.' Military Government—United States Area of Control, Proclamation No. 2, 12 Fed.Reg. 6997.
35
4. 1946.—Military Government Courts, as distinguished from courts-martial, were given jurisdiction over all persons in the occupied territory, including civilians subject to military law and over offenses under the laws of the occupied territory.
36
'* * * Article II; jurisdiction. (1) Military Government courts shall have jurisdiction over all persons in the occupied territory except persons other than civilians who are subject to military, naval or air force law and are serving under the command of the Supreme Commander, Allied Expeditionary Force, or any other Commander of any forces of the United Nations.
37
'(2) Military Government Courts shall have jurisdiction over:
38
'(i) All offences against the laws and usages of war.
39
'(ii) All offences under any proclamation, law, ordinance, notice or order issued by or under the authority of the Military Government or of the Allied Forces.
40
'(iii) All offences under the laws of the occupied territory or of any part thereof.' United States Military Government Ordinance No. 2, Military Government Courts, 12 Fed.Reg. 2190 2191.
41
5. 1946.—German courts were denied jurisdiction in certain criminal cases, including those involving any national of the United Nations or any dependent accompanying any of the Armed Forces of any of the United Nations.
42
'* * * Article VI; limintations on jurisdiction. (1) Except when expressly authorized by Control Council or Military Government Law, ordinance or regulation, or by order of the Director of Military Government of the appropriate Land, no German court shall assert or exercise jurisdiction in the following cases or classes or (of) cases:
43
'(i) Criminal cases involving:
44
'(a) Any of the United Nations, or
45
'(b) The Armed Forces of any of the United Nations, or
46
'(c) Any person serving with any such Forces or a dependent accompanying any of them, or
47
'(d) Any national of the United Nations, or * * *.' United States Military Government, Law No. 2, German courts, 12 Fed.Reg. 2191, 2192.
48
6. August 18, 1948.—United States Military Government Courts for Germany established.
49
'* * * Ordinance No. 31; United States Military Government Courts for Germany; creation of the courts—(a) Article 1; judicial system. A system of courts is hereby established for the United States Area of Control of Germany * * *.
50
'(c) Article 3; District Courts. (1) A District Court is hereby established for each judicial district within the United States Area of Control.
51
'(3) Each District Court shall consist of one or more District Judges and one or more Magistrates who shall sit singly except as provided in subparagraph (5) of this paragraph.
52
'(5) A District Court composed of three District Judges or two District Judges and a Magistrate may hear and decide any civil or criminal case, and, in the latter, may impose any lawful sentence including death. A majority of such Court shall decide any case before it, provided that no sentence of death shall be imposed except by the unanimous decision of the Court.
53
'(8) Where an accused is charged with an offense under German law, the Court shall be limited to the sentence or other penal provision of such law.
54
'JURISDICTION OF THE COURTS
55
'(g) Article 7, jurisdiction of District Courts in criminal cases. (1) District Courts shall have criminal jurisdiction over all persons in the United States Area of Control except persons, other than civilians, who are subject to military, naval or air force law and are serving with any forces of the United Nations. No person subject to military law of the United States shall be brought to trial for any offense except upon authorization of the Commander-in-Chief, European Command. No member of an Allied Mission, visiting governmental official, or person subject to the military law of any country other than the United States, shall be brought to trial for any offense except upon authorization of the Military Governor.
56
'(2) District Courts shall have jurisdiction to hear and decide cases involving:
57
'(i) Offenses under legislation issued by or under the authority of the Allied Control Council;
58
'(ii) Offenses under United States Military Government Legislation;
59
'(iii) Offenses under German law in force in the Judicial District of the Court.' 14 Fed.Reg. 124, 125, 126.
60
7. December 11, 1948.—The Commander-in-Chief of the United States European Command endorsement addressed to the Chief Attorney, United States Military Government Courts for Germany:
61
'Authorization is hereby given for trial of any dependent of a member of the United States Armed Forces or of any dependent of a civilian employee of the Department of the Army for any non-military offenses before the appropriate Military Government Court established by Military Government Ordinance No. 31 unless, in a particular case, this headquarters has directed trial by Court Martial.' Resp.Ex. 4, R. 71.
62
8. May 12, 1949.—Occupation statute promulgated by Military Governors and Commanders-in-Chief of the Western Zones of Germany to become effective at a later date. It declared that—
63
'1. During the period in which it is necessary that the occupation continue * * * (the occupying powers) desire and intend that the German people shall enjoy self-government to the maximum possible degree consistent with such occupation. The Federal State and the participating Laender (states) shall have, subject only to the limitations in this Instrument, full legislative, executive and judicial powers in accordance with the Basic Law and with their respective constitutions.
64
'2. In order to ensure the accomplishment of the basic purposes of the occupation, powers in the following fields are specifically reserved * * *.
65
'(e) Protection, prestige, and security of Allied forces, dependents, employees and representatives, their immunities and satisfaction of occupation costs and their other requirements; * * *.' 14 Fed.Reg. 7457.
66
9. June 6, 1949.—Executive Order 10062 of the President Establishing the Position of United States High Commissioner for Germany:
67
'2. The United States High Commissioner for Germany, hereinafter referred to as the High Commissioner, shall be the supreme United States authority in Germany. The High Commissioner shall have the authority, under the immediate supervision of the Secretary of State (subject, however, to consultation with and ultimate direction by the President), to exercise all of the governmental functions of the United States in Germany (other than the command of troops), including representation of the United States on the Allied High Commission for Germany when established, and the exercise of appropriate functions of a Chief of Mission within the meaning of the Foreign Service Act of 1946.
68
'4. In the event that the High Commissioner shall assume his duties in accordance with this Executive Order prior to the date that the Military Government of the United States Zone of Germany is terminated, he shall during such interval report to the Secretary of Defense, through the Secretary of the Army, and shall be the United States Military Governor with all the powers thereof including those vested in the United States Military Governor under all international agreements.' 14 Fed.Reg. 2965.
69
10. September 21, 1949.—Council of Allied High Commission declared occupation statute to be in force as promulgated May 12, 1949. 14 Fed.Reg. 7456.
70
11. September 21, 1949.—United States High Commissioner for Germany, in accordance with Executive Order 10062, assumed the authority residing in the United States Military Governor and the Office of Military Government for Germany for the governmental functions of the United States in Germany:
71
'2. The Office of the U.S. High Commissioner for Germany is hereby established as the agency through which the authority vested in the U.S. High Commissioner shall be exercised. Its organization shall be as shown in the attached charts (including U.S. High Commission Courts, Court of Appeals, District Courts), and its functions shall be assigned among its constituent elements as set forth in separate issuances, effective this date.' Office of the United States High Commissioner for Germany, Staff Announcement No. 1, Resp.Ex. 1, R. 67, 68.
72
12. September 21, 1949.—The United States High Commissioner for Germany announced that the United States Courts for Germany, as established by Staff Announcement No. 1 (and previously established as the 'United States Military Government Courts for Germany,' pursuant to United States Military Government Ordinance No. 31) 'form an independent judicial unit responsible directly to the United States High Commissioner. The integrated system provides for district judges and magistrates at the district court level and for a Chief Judge and associate judges of the Court of Appeals.' Office of the United States High Commissioner for Germany, Staff Announcement No. 5, Resp.Ex. 2, R. 69. Similar announcement was made as to the Office of General Counsel and of the Chief Attorney. Staff Announcement No. 6, Resp.Ex. 3, R. 70.
73
13. September 21, 1949.—'Allied Forces' defined by Allied High Commission:
74
'In the absence of any indication to the contrary, in legislation of the Allied High Commission:
75
'3. The expression 'Allied Forces' shall include—
76
'(a) The Occupation Authorities.
77
'(b) The Occupation Forces and their members.
78
'(c) Non-German nationals, civilian or military, who are serving with the Occupation Authorities.
79
'(d) Members of the families and non-German persons in the service of the persons referred to in subparagraphs (a)(b) and (c) of this paragraph.' Allied High Commission, Law No. 2, Art. 1, 14 Fed.Reg. 7457.
80
14. September 21, 1949.—Transitional Provisions proclaimed by Allied High Commission for Germany adapting existing legislation to the provisions of the occupation statute effective September 21, 1949.
'ARTICLE 5
81
'References in any legislation enacted before the entry into force of the Occupation Statute to the Control Council, the Supreme Commander Allied Expeditionary Force, the Commanding General, the Armed Forces, Military Government, the Military Governor and to other authorities shall, where the context so requires or admits, be deemed to refer to the appropriate authorities exercising the particular functions mentioned in such legislation.' Allied High Commission, Law No. 3, 14 Fed.Reg. 7458.
82
15. November 25, 1949.—Judicial powers were reserved, from the German courts, as to members of families of members of the Occupation Forces, thus bringing them under the jurisdiction of the occupation courts.
83
'The Council of the Allied High Commission enacts as follows:
84
'ARTICLE 1
85
'Except when expressly authorized, either generally or in specific cases, by the High Commissioner of the Zone in which the Court is located, German Courts shall not exercise criminal jurisdiction:
86
'(a)(i) Over the allied Forces; * * *' Allied High Commission, Law No. 13, 15 Fed.Reg. 1056.
87
16. December 28, 1949 (Effective January 1, 1950).—Occupation courts were changed.
88
'The United States High Commissioner for Germany enacts as follows:
89
'ARTICLE 1
90
'Article 1 of United States Military Government Ordinance No. 31, 'United States Military Government Courts for Germany', is hereby amended by changing the last sentence of said Article to read as follows:
91
"The Courts so created shall be known as the United States Courts of the Allied High Commission for Germany."
92
'ARTICLE 2
93
'Article 4 of United States Military Government Ordinance No. 31, 'United States Military Government Courts for Germany', is hereby amended by changing the first sentence of Section 2 of said Article to read as follows:
94
'The Court of Appeals shall consist of a Chief Justice and eight Associate Justices."
95
'ARTICLE 3
96
'Wherever the term 'United States Military Government Courts for Germany' or the terms 'Chief Judge' or 'Associate Judge' or 'Associate Judges' of the Court of Appeals are used in any legislation and regulations now in force, such terms shal be deemed to refer to the United States Courts of the Allied High Commission for Germany and the Chief Justice and an Associate Justice or Associate Justices of the Court of Appeals of such Courts, respectively.' Allied High Commission, Law No. 1, 15 Fed.Reg. 2086.
97
Mr. Justice BLACK, dissenting.
98
Petitioner, a United States citizen, is now serving a fifteen-year sentence for murdering her husband. At the time of the alleged crime, she was living in the United States Area of Control in Germany with her husband who was an Air Force lieutenant on active duty in Germany. It appears that the court that tried her and the law she was judged by were not established or authorized by the Congress. Executive officers acting under presidential authority created the system of courts that tried her, promulgated the edicts she was convicted of violating, and appointed the judges who took away her liberty.
99
The very first Article of the Constitution begins by saying that 'All legislative Powers herein granted shall be vested in a Congress' and no part of the Constitution contains a provision specifically authorizing the President to create courts to try American citizens. Whatever may be the scope of the President's power as Commander in Chief of the Fighting armed forces, I think that if American citizens in present-day Germany are to be tried by the American Government, they should be tried under laws passed by Congress and in courts created by Congress under its constitutional authority.
1
See United States Military Government Ordinance No. 31, August 18, 1948, 14 Fed.Reg. 124—128. See Appendix, infra, 72 S.Ct. p. 712.
2
The agreed statement of facts states:
'4. Section 211 of the German Criminal Code reads as follows in English translation:
"Murder—Mord
"211. (As in force prior to 4 September 1941). Whoever intentionally kills a human being is guilty of murder if the killing was accomplished with premediation, and shall be punished by death.
"211. (As amended 4 September 1941, RGBI I, 549). The murderer shall be punished by death.
"A murderer is hereby defined as one who kills a human being out of the morbid desire to kill (Mordlust);
"For the satisfaction of sexual desire;
"For cupidity (Habgier) or any other base motives;
"In a treacherous or cruel manner or by means causing common danger, or
"In order to make possible or to conceal another offense.
"If, in especially exceptional cases, the death penalty is not suitable (angemessen), punishment of confinement for life in a penitentiary shall be imposed."
The agreed statement also contains a translation of §§ 44 and 51 of the German Criminal Code providing for reduction of sentence under circumstances which were deemed applicable to petitioner by the trial court.
3
See Allied High Commission, Law No. 1, Art. 1, December 28, 1949, 15 Fed.Reg. 2086, Appendix, infra, 72 S.Ct. 715.
4
See United States Military Government Ordinance No. 31, Art. 13, August 18, 1948, 14 Fed.Reg. 127.
5
See notes 1, 3 and 4, supra.
6
See 38 Stat. 1084—1085, 10 U.S.C. § 1452, 10 U.S.C.A. § 1452, and, since May 31, 1951, see Art. 58 of the Uniform Code of Military Justice, 64 Stat. 126, 50 U.S.C. (Supp. IV) § 639, 50 U.S.C.A. § 639.
7
There was no nonmilitary court of the United States in Germany. She enjoyed the immunity from the jurisdiction of all German courts which had been granted to nationals of the United Nations and to families of members of the occupation forces. United States Military Government Law No. 2, Art. VI (1), 12 Fed.Reg. 2191, 2192, Appendix, infra, 72 S.Ct. p. 712; Allied High Commission, Law No. 2, Art. 1, 14 Fed.Reg. 7457, Appendix, infra, 72 S.Ct. p. 714; Allied High Commission, Law No. 13, Art. 1, 15 Fed.Reg. 1056—1057, see Appendix, infra, 72 S.Ct. p. 715.
8
'By a practice dating from 1847 and renewed and firmly established during the Civil War, military commissions have become adopted as authorized tribunals in this country in time of war. They are simply criminal war courts, resorted to for the reason that the jurisdiction of courts-martial, creatures as they are of statute, is restricted by law, and can not be extended to include certain classes of offenses which in war would go unpunished in the absence of a provisional forum for the trial of the offenders. * * * There (Their) competency has been recognized not only in acts of Congress, but in executive proclamations, in rulings of the courts, and in the opinions of the Attorneys General. During the Civil War they were employed in several thousand cases; * * *.' Howland, Digest of Opinions of the Judge-Advocates General of the Army (1912), 1066—1067.
9
In speaking of the authority and occasion for the use of a military commission, Colonel William Winthrop, in his authoritative work on Military Law and Precedents (2d ed. 1920 reprint), says at 831:
'* * * it is those provisions of the Constitution which empower Congress to 'declare war' and 'raise armies,' and which, in authorizing the initiation of war, authorize the employment of all necessary and proper agencies for its due prosecution, from which this tribunal derives its original sanction. Its authority is thus the same as the authority for the making and waging of war and for the exercise of military government and martial law. The commission is simply an instrumentality for the more efficient execution of the war powers vested in Congress and the power vested in the President as Commander-in-chief in war. In some instances * * * Congress has specifically recognized the military commission as the proper war-court, and in terms provided for the trial thereby of certain offences. In
general, however, it has left it to the President, and the military commanders representing him, to employ the commission, as occasion may require, for the investigation and punishment of violations of the laws of war and other offences not cognizable by court- martial.
'The occasion for the military commission arises principally from the fact that the jurisdiction of the court-martial proper, in our law, is restricted by statute almost exclusively to members of the military force and to certain specific offences defined in a written code. It does not extend to many criminal acts, especially of civilians, peculiar to time of war; and for the trial of these a different tribunal is required. * * * Hence, in our military law, the distinctive name of military commission has been adopted for the exclusively war-court, which * * * is essentially a distinct tribunal from the court-martial of the Articles of war.'
For text of General Scott's General Order No. 20, as amended by General Order No. 287, September 17, 1847, authorizing the appointment of military commissions in Mexico, see Birkhimer, Military Government and Martial Law (2d ed. rev. 1904), App. I, 581—582. See also, Duncan v. Kahanamoku, 327 U.S. 304, 66 S.Ct. 606, 90 L.Ed. 688; In re Yamashita, 327 U.S. 1, 66 S.Ct. 340, 90 L.Ed. 499; Santiago v. Nogueras, 214 U.S. 260, 29 S.Ct. 608, 53 L.Ed. 989; Neely v. Henkel, 180 U.S. 109, 21 S.Ct. 302, 45 L.Ed. 448; Mechanics' & Traders' Bank v. Union Bank, 22 Wall. 276, 279 note, 22 L.Ed. 871; The Grapeshot, 9 Wall. 129, 132, 19 L.Ed. 651; Cross v. Harrison, 16 How. 164, 190, 14 L.Ed. 889; II Halleck, International Law (3d ed. 1893), 444—445. For an example of the exercise of jurisdiction in a murder case by a Provisional Court established in Louisiana, in 1862, by executive order of the President of the United States and an opinion by the Provisional Judge reviewing the constitutional authority for the establishment of his court, see United States v. Reiter, 27 Fed.Cas.No.16,146, p. 768.
10
While explaining a proposed reference to military commissions in Article of War 15, Judge Advocate General Crowder, in 1916, said, 'A military commission is our common-law war court. It has no statutory existence, though it is recognized by statute law.' S.Rep.No.130, 64th Cong., 1st Sess. 40.
11
Such as Military Commission, Council of War, Military Tribunal, Military Government Court, Provisional Court, Provost Court, Court of Conciliation, Arbitrator, Superior Court, and Appellate Court. And see Winthrop, op. cit. 803—804.
12
It has been recognized, even after peace has been declared, pending complete establishment of civil government. See Duncan v. Kahanamoku, 327 U.S. 304, 66 S.Ct. 606, 90 L.Ed. 688; In re Yamashita, 327 U.S. 1, 12—13, 66 S.Ct. 340, 346, 90 L.Ed. 499; Santiago v. Nogueras, 214 U.S. 260, 29 S.Ct. 608, 53 L.Ed. 989; Neely v. Henkel, 180 U.S. 109, 21 S.Ct. 302, 45 L.Ed. 448; Burke v. Miltenberger, 19 Wall. 519, 22 L.Ed. 158; Leitensdorfer v. Webb, 20 How. 176, 15 L.Ed. 891; Cross v. Harrison, 16 How. 164, 14 L.Ed. 889.
13
See Article 43 of The Hague Regulations respecting the laws and customs of war on land with special relation to military authority over the territory of a hostile state (1907):
'The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.' 36 Stat. 2306.
'Military government * * * is an exercise of sovereignty, and as such dominates the country which is its theatre in all the branches of administration. Whether administered by officers of the army of the belligerent, or by civilians left in office or appointed by him for the purpose, it is the government of and for all the inhabitants, native or foreign, wholly superseding the local law and civil authority except in so far as the same may be permitted by him to subsist. * * * The local laws and ordinances may be left in force, and in general should be, subject however to their being in whole or in part suspended and others substituted in their stead—in the discretion of the governing authority.' Winthrop, op. cit. 800.
14
U.S.Const., Art. I, § 8, cl. 14.
15
Article XXXII of the American Articles of War of 1775 was taken from Article XXII of Section XIV of the British Articles of War of 1765. It provided only that 'All suttlers and retailers to a camp, and all persons whatsoever, serving with the continental army in the field, though not inlisted soldiers, are to be subject to the articles, rules, and regulations of the continental army.' (Emphasis supplied.) Winthrop's Military Law and Precedents (2d ed. 1920 reprint) 956, and see 941 and 950. Article 60 of the Articles of War of 1806 was similar. It substituted 'retainers' for 'retailers.' Id., at 981. Article 60 was slightly amended in 1874. By 1916, as Article 63, Congress still provided, as to civilians, merely that 'All retainers to the camp, and all persons serving with the armies of the United States in the field, though not enlisted soldiers, are to be subject to orders, according to the rules and discipline of war.' (Emphasis supplied.) Id., at 991 and see 98—99.
16
The Enrollment Act of 1863 conferred upon courts-martial jurisdiction over many nonmilitary crimes if committed by soldiers in
time of war. That Act incidentally recognized a concurrent jurisdiction over such crimes in military commissions:
'Sec. 30. * * * in time of war, insurrection, or rebellion, murder, assault and battery with an intent to kill, manslaughter * * * shall be punishable by the sentence of a general court-martial or military commission, when committed by persons who are in the military service of the United States, and subject to the articles of war; and the punishments for such offences shall never be less than those inflicted by the laws of the state, territory, or district in which they may have been committed.' (Emphasis supplied.) 12 Stat. 736.
In the codification published as the Revised Statutes of 1874, the incidental reference to military commissions was omitted. Article of War 58 at 234. Petitioner attaches substantial significance to the omission. It seems clear, however, that regardless of what effect, if any, may attach to that omission in its relation to the jurisdiction of military commissions over persons in the military service, it has no effect on the jurisdiction of military commissions over civilians not 'in the military service.' This section of the Act of 1863 was enacted so as to place soldiers who committed certain nonmilitary crimes under the jurisdiction of military courts. See Caldwell v. Parker, 252 U.S. 376, 40 S.Ct. 388, 64 L.Ed. 621. The section did not relate to the jurisdiction of courts or commissions over civilians not in the military service. Cong.Globe, 37th Cong., 3d Sess. 988, 1256, 1377, 1384 (1863). For discussion of the phrase 'in the military service' as used in Articles 58 and 60, see Gen. Crowder's testimony. S.Rep.No.229, 63d Cong., 2d Sess. 104.
17
In 1920, Article of War 15 was reenacted with the addition of 'by statute or' before the words 'by the law of war'. 41 Stat. 790, 10 U.S.C. § 1486, 10 U.S.C.A. § 1486. It was in that form in 1949 and 1950. It was again reenacted May 5, 1950, as the present Article 21 of the Uniform Code of Military Justice, effective May 31, 1951. 64 Stat. 115, 145, 50 U.S.C. (Supp. IV) § 581, 50 U.S.C.A. § 581. The hearings, in 1949, on the latter legislation are of some significance here. They disclosed that the United States Military Government Courts in Germany were then exercising, in the occupied territory, criminal jurisdiction over United States civilians accompanying the Armed Forces. Attention even was called to the recent case of Wilma B. Ybarbo. Like petitioner in the instant case, she was a civilian dependent wife of a member of the United States Armed Forces in Germany, charged with the murder of her husband in violation of the German Criminal Code. She was convicted by the United States Military Government Court for the Third Judicial District. The Court of Appeals of the United States Military Government Courts, March 14, 1949, upheld her conviction, on a lesser charge, and sentenced her to five years' imprisonment. In its opinion, the latter court reviewed the basis for its jurisdiction. United States Military Government v. Ybarbo, 1 U.S.M.G.Court of Appeals 207. See also, Hearings before a Subcommittee of the House Committee on Armed Services on H.R. 2498, Uniform Code of Military Justice, 81st Cong., 1st Sess. 876, 975, 1061. With this practice before them, the Committees of both Houses of Congress recommended the reenactment of Article of War 15 as Article 21 of the new code. They said, 'This article preserves existing Army and Air Force law which gives concurrent jurisdiction to military tribunals other than courts martial.' S.Rep.No.486, 81st Cong., 1st Sess. 13; H.R.Rep.No.491, 81st Cong., 1st Sess. 17.
18
The 1916 Act substituted, for Article 63 (see note 15, supra), a new Article 12 which provided that 'General courts-martial shall have power to try any person subject to military law for any crime or offense made punishable by these articles, and any other person who by the law of war is subject to trial by military tribunals: * * *.' (Emphasis supplied.) 39 Stat. 652, 41 Stat. 789, 62 Stat. 629, 10 U.S.C. (Supp. IV) § 1483, 10 U.S.C.A. § 1483. A new article 2 then defined 'any person subject to military law' so as to include—
'(d) All retainers to the camp and all persons accompanying or serving with the armies of the United States without the territorial jurisdiction of the United States, and in time of war all such retainers and persons accompanying or serving with the armies of the United States in the field, both within and without the territorial jurisdiction of the United States, though not otherwise subject to these articles; * * *.' (Emphasis supplied.) 39 Stat. 651, 41 Stat. 787, 10 U.S.C. § 1473(d), 10 U.S.C.A. § 1473(d).
19
In 1916, new Articles 92 and 93 expanded the jurisdiction of courts-martial over murder and certain other nonmilitary crimes so as to cover their commission by any 'person subject to military law'. That phrase, through Article 2, included civilians in the status of petitioner. See note 18, supra. For Articles 92 and 93, see 39 Stat. 664, 41 Stat. 805, 62 Stat. 640, 10 U.S.C. (Supp. IV) §§ 1564, 1565, 10 U.S.C.A. §§ 1564, 1565. See note 16, supra, for the substance of Article 30 of the Articles of War of 1863 and of Article 58 of the Articles of War of 1874.
20
In explaining like provisions to the House Committee on Military Affairs in 1912, General Crowder previously had said:
'The next article, No. 15, is entirely new, and the reasons for its insertion in the code are these: In our War with Mexico two war courts were brought into existence by orders of Gen. Scott, viz, the military commission and the council of war. By the military commission Gen. Scott tried cases cognizable in time of peace by civil courts, and by the council of war he tried offenses against the laws of war. The council of war did not survive the Mexican War period, and in our subsequent wars its jurisdiction has been taken voer by the
military commission, which during the Civil War period tried more than 2,000 cases. While the military commission has not been formally authorized by statute, its jurisdiction as a war court has been upheld by the Supreme Court of the United States. It is an institution of the greatest importance in a period of war and should be preserved. In the new code the jurisdiction of courts-martial has been somewhat amplified by the introduction of the phrase 'Persons subject to military law.' There will be more instances in the future than in the past when the jurisdiction of courts-martial will overlap that of the war courts, and the question would arise whether Congress having vested jurisdiction by statute the common law of war jurisdiction was not ousted. I wish to make it perfectly plain by the new article that in such cases the jurisdiction of the war court is concurrent.
'* * * I was influenced to propose the article (15) largely, perhaps, by experience during our second intervention in Cuba. It was not very long after that intervention had been inaugurated until two soldiers were charged with homicide of some natives. There was no civil court of the United States having jurisdiction. Plainly the court-martial could not try them, as the condition was not war. There were two courses open: First, to surrender them for trial before a Cuban court * * * the second course was to utilize the extraordinary authority which inhered in the office of the provisional governor and which extended to the making of laws, to promulgate a special decree creating a provisional court for the trial of these men. This second course was followed, and the accused soldiers were tried by a court composed of officers of the Army, which administered the provisions of the Spanish criminal code. Should we be confronted again with the necessity of intervention, that situation is likely to repeat itself.' S.Rep.No.229, 63d Cong., 2d Sess. 53, 98—99.
21
See note 9, supra.
22
In Ex parte Quirin, 317 U.S. 1, 28, 63 S.Ct. 1, 10, this Court said:
'By the Articles of War, and especially Article 15, Congress has explicitly provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try offenders or offenses against the law of war in appropriate cases. Congress, in addition to making rules for the government of our Armed Forces, has thus exercised its authority to define and punish offenses against the law of nations by sanctioning, within constitutional limitations, the jurisdiction of military commissions to try persons for offenses which, according to the rules and precepts of the law of nations, and more particularly the law of war, are cognizable by such tribunals. And the President, as Commander in Chief, by his Proclamation in time of war has invoked that law. By his Order creating the present Commission he has undertaken to exercise the authority conferred upon him by Congress, and also such authority as the Constitution itself gives the Commander in Chief, to direct the performance of those functions which may constitutionally be performed by the military arm of the nation in time of war.'
In that case the military commission's conviction of saboteurs, including one citizen of the United States, was upheld on charges of violating the law of war as defined by statute. 317 U.S. at pages 35—38, 63 S.Ct. 14—15.
23
The Government estimates that the United States Area of Control has a German population of about 17,000,000, plus United Nations nationals, including refugees. As of November 30, 1949, it estimates that there were in Germany about 34,000 dependents of members of United States Armed Forces, plus 4,700 civilian employees with 5,000 dependents. Other United States agencies had 4,100 employees in Germany. The occupation courts have been handling at least 1,000 criminal cases a month, including from 25 to 30 cases involving American civilians. See also, general account of the development of the Military Government Courts in Clay, Decision in Germany (1950), 246—248.
24
United States Military Government Ordinance No. 2, in 1946, provided—
'(e) Article V; rights of accused. (1) Every person accused before a Military Government Court shall be entitled:
'(i) To have in advance of trial a copy of the charges upon which he is to be tried;
'(ii) To be present at his trial, to give evidence and to examine or cross-examine any witness; but the court may proceed in the absence of the accused if the accused has applied for and been granted permission to be absent, or if the accused is believed to be a fugitive from justice;
'(iii) To consult a lawyer before trial and to conduct his own defense or to be represented at the trial by a lawyer of his own choice, subject to the right of the court to debar and person from appearing before the court;
'(iv) In any case in which a sentence of death may be imposed, to be represented by an officer of the Allied Forces, if he is not otherwise represented;
'(v) To bring with him to his trial such material witnesses in his defense as he may wish, or to have them summoned by the court at his request, if practicable;
'(vi) To apply to the court for an adjournment where necessary to enable him to prepare his defense;
'(vii) To have the proceedings translated, when he is otherwise unable to understand the language in which they are conducted; * * *.' 12 Fed.Reg. 2191.
25
United States Military Government Ordinances 32 and 33, code of criminal procedure for United States Military Government Courts for Germany, 14 Fed.Reg. 128—133.
Field Manual 27—5 (1947), at page 66, provides:
'Military government tribunals are not governed by the provisions of the Manual for Courts-Martial nor by the limitations imposed on courts-martial by Articles of War. Experience has demonstrated that in administering justice in an occupied area, it is desirable to follow forms of judicial procedure which are generally similar to the forms of procedure to which the people are accustomed.'
Cf. the order of President Lincoln of October 20, 1862, establishing a Provisional Court in New Orleans, Louisiana, as a 'court of record for the State of Louisiana' with a civilian as—
'a provisional judge, to hold said court, with authority to hear, try, and determine all causes, civil and criminal, including causes in law, equity, revenue, and admiralty, and particularly all such powers and jurisdiction as belong to the District and Circuit courts of the United States, conforming his proceedings, so far as possible, to the course of proceedings and practice which has been customary in the courts of the United States in Louisiana; his judgments to be final and conclusive. * * * These appointments (of prosecuting attorney, marshal and clerk of the court) are to continue during the pleasure of the President, not extending beyond the military occupation of the city of New Orleans, or the restoration of the civil authority in that city and the State of Louisiana.' (Emphasis supplied.) Mechanics' & Traders' Bank v. Union Bank, 22 Wall. 276, 279 note, 22 L.Ed. 871; and see United States v. Reiter, 27 Fed.Cas.No.16,146, p. 768.
26
They did not provide for juries. The presentment or indictment of a grand jury required in a federal capital case by the Fifth Amendment to the Constitution of the United States, under the terms of that Amendment, has no application to 'cases arising in the land or naval forces * * *.' The right of trial by jury required in federal criminal prosecutions by the Sixth Amendment is similarly limited. See Ex parte Quirin, 317 U.S. 1, 40, 43—45, 63 S.Ct. 1, 16, 18—19; Ex parte Miligan, 4 Wall. 2, 123, 138, 18 L.Ed. 281.
27
'* * * The status of military government continues from the inception of the actual occupation till the invader is expelled by force of arms, or himself abandons his conquest, or till, under a treaty of peace, the country is restored to its original allegiance or becomes incorporated with the domain of the prevailing belligerent.' Winthrop, op. cit. 801.
28
See note 18, supra.
29
Cf. Dow v. Johnson, 100 U.S. 158, 166, 25 L.Ed. 632; Ketchum v. Buckley, 99 U.S. 188, 25 L.Ed. 473, as illustrations of the practice of recognizing the existing law of the occupied area; and Winthrop, op. cit. 800.
| 12
|
343 U.S. 306
72 S.Ct. 679
96 L.Ed. 954
ZORACH et al.v.CLAUSON et al.
No. 431.
Argued Jan. 31 and Feb. 1, 1952.
Decided April 28, 1952.
[Syllabus from pages 306-307 intentionally omitted]
Mr. Kenneth W. Greenawalt, New York City, for appellants.
Mr. Wendell P. Brown, Albany, N.Y., for appellee Comm. of Education of State of New York.
Mr. Michael A. Castaldi, New York City, for appellee Board of Education of City of New York.
Mr. Charles H. Tuttle, New York City, for appellee Greater New York Coordinating Comm. etc.
[Amicus Curiae Information from page 307 intentionally omitted]
Mr. Justic
e DOUGLAS delivered the opinion of the Court.
New York City has a program which permits its public schools to release students during the school day so that they may leave the school buildings and school grounds and go to religious centers for religious instruction or devotional exercises. A student is released on written request of his parents. Those not released stay in the classrooms. The churches make weekly reports to the schools, sending a list of children who have been released from public school but who have not reported for religious instruction.1
This 'released time' program involves neither religious instruction in public school classrooms nor the expenditure of public funds. All costs, including the application blanks, are paid by the religious organizations. The case is therefore unlike McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 249, which involved a 'released time' program from Illinois. In that case the classrooms were turned over to religious instructors. We accordingly held that the program violated the First Amendment2 which (by reason of the Fourteenth Amendment)3 prohibits the states from establishing religion or prohibiting its free exercise.
Appellants, who are taxpayers and residents of New York City and whose children attend its public schools,4 challenge the present law, contending it is in essence not different from the one involved in the McCollum case. Their argument, stated elaborately in various ways, reduces itself to this: the weight and influence of the school is put behind a program for religious instruction; public school teachers police it, keeping tab on students who are released; the classroom activities come to a halt while the students who are released for religious instruction are on leave; the school is a crutch on which the churches are leaning for support in their religious training; without the cooperation of the schools this 'released time' program, like the one in the McCollum case, would be futile and ineffective. The New York Court of Appeals sustained the law against this claim of unconstitutionality. 303 N.Y. 161, 100 N.E.2d 463. The case is here on appeal. 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2).
The briefs and arguments are replete with data bearing on the merits of this type of 'released time' program. Views pro and con are expressed, based on practical experience with these programs and with their implications.5 We do not stop to summarize these materials nor to burden the opinion with an analysis of them. For they involve considerations not germane to the narrow constitutional issue presented. They largely concern the wisdom of the system, its efficiency from an educational point of view, and the political considerations which have motivated its adoption or rejection in some communities. Those matters are of no concern here, since our problem reduces itself to whether New York by this system has either prohibited the 'free exercise' of religion or has made a law 'respecting an establishment of religion' within the meaning of the First Amendment.
It takes obtuse reasoning to inject any issue of the 'free exercise' of religion into the present case. No one is forced to go to the religious classroom and no religious exercise or instruction is brought to the classrooms of the public schools. A student need not take religious instruction. He is left to his own desires as to the manner or time of his religious devotions, if any.
There is a suggestion that the system involves the use of coercion to get public school students into religious classrooms. There is no evidence in the record before us that supports that conclusion.6 The present record indeed tells us that the school authorities are neutral in this regard and do no more than release students whose parents so request. If in fact coercion were used, if it were established that any one or more teachers were using their office to persuade or force students to take the religious instruction, a wholly different case would be presented.7 Hence we put aside that claim of coercion both as respects the 'free exercise' of religion and 'an establishment of religion' within the meaning of the First Amendment.
Moreover, apart from that claim of coercion, we do not see how New York by this type of 'released time' program has made a law respecting an establishment of religion within the meaning of the First Amendment. There is much talk of the separation of Church and State in the history of the Bill of Rights and in the decisions clustering around the First Amendment. See Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711; McCollum v. Board of Education, supra. There cannot be the slightest doubt that the First Amendment reflects the philosophy that Church and State should be separated. And so far as interference with the 'free exercise' of religion and an 'establishment' of religion are concerned, the separation must be complete and unequivocal. The First Amendment within the scope of its coverage permits no exception; the prohibition is absolute. The First Amendment, however, does not say that in every and all respects there shall be a separation of Church and State. Rather, it studiously defines the manner, the specific ways, in which there shall be no concert or union or dependency one on the other. That is the common sense of the matter. Otherwise the state and religion would be aliens to each other—hostile, suspicious, and even unfriendly. Churches could not be required to pay even property taxes. Municipalities would not be permitted to render police or fire protection to religious groups. Policemen who helped parishioners into their places of worship would violate the Constitution. Prayers in our legislative halls; the appeals to the Almighty in the messages of the Chief Executive; the proclamations making Thanksgiving Day a holiday; 'so help me God' in our courtroom oaths—these and all other references to the Almighty that run through our laws, our public rituals, our ceremonies would be flouting the First Amendment. A fastidious atheist or agnostic could even object to the supplication with which the Court opens each session: 'God save the United States and this Honorable Court.'
We would have to press the concept of separation of Church and State to these extremes to condemn the present law on constitutional grounds. The nullification of this law would have wide and profound effects. A catholic student applies to his teacher for permission to leave the school during hours on a Holy Day of Obligation to attend a mass. A Jewish student asks his teacher for permission to be excused for Yom Kippur. A Protestant wants the afternoon off for a family baptismal ceremony. In each case the teacher requires parental consent in writing. In each case the teacher, in order to make sure the student is not a truant, goes further and requires a report from the priest, the rabbi, or the minister. The teacher in other words cooperates in a religious program to the extent of making it possible for her students to participate in it. Whether she does it occasionally for a few students, regularly for one, or pursuant to a systematized program designed to further the religious needs of all the students does not alter the character of the act.
We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary. We sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma. When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe. Government may not finance religious groups nor undertake religious instruction nor blend secular and sectarian education nor use secular institutions to force one or some religion on any person. But we find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence. The government must be neutral when it comes to competition between sects. It may not thrust any sect on any person. It may not make a religious observance compulsory. It may not coerce anyone to attend church, to observe a religious holiday, or to take religious instruction. But it can close its doors or suspend its operations as to those who want to repair to their religious sanctuary for worship or instruction. No more than that is undertaken here.
This program may be unwise and improvident from an educational or a community viewpoint. That appeal is made to us on a theory, previously advanced, that each case must be decided on the basis of 'our own prepossessions.' See McCollum v. Board of Education, supra, 333 U.S. at page 238, 68 S.Ct. at page 478. Our individual preferences, however, are not the constitutional standard. The constitutional standard is the separation of Church and State. The problem, like many problems in constitutional law, is one of degree. See McCollum v. Board of Education, supra, 333 U.S. at page 231, 68 S.Ct. at page 475.
In the McCollum case the classrooms were used for religious instruction and the force of the public school was used to promote that instruction. Here, as we have said, the public schools do no more than accommodate their schedules to a program of outside religious instruction. We follow the McCollum case.8 But we cannot expand it to cover the present released time program unless separation of Church and State means that public institutions can make no adjustments of their schedules to accommodate the religious needs of the people. We cannot read into the Bill of Rights such a philosophy of hostility to religion.
Affirmed.
Mr. Justice BLACK, dissenting.
1
Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 249, held invalid as an 'establishment of religion' an Illinois system under which school children, compelled by law to go to public schools, were freed from some hours of required school work on condition that they attend special religious classes held in the school buildings. Although the classes were taught by sectarian teachers neither employed nor paid by the state, the state did use its power to further the program by releasing some of the children from regular class work, insisting that those released attend the religious classes, and requiring that those who remained behind do some kind of academic work while the others received their religious training. We said this about the Illinois system:
2
'Pupils compelled by law to go to school for secular education are released in part from their legal duty upon the condition that they attend the religious classes. This is beyond all question a utilization of the tax-established and tax-supported public school system to aid religious groups to spread their faiths. And it falls squarely under the ban of the First Amendment * * *.' McCollum v. Board of Education, supra, 333 U.S. at pages 209—210, 68 S.Ct. at page 464.
3
I see no significant difference between the invalid Illinois system and that of New York here sustained. Except for the use of the school buildings in Illinois, there is no difference between the systems which I consider even worthy of mention. In the New York program, as in that of Illinois, the school authorities release some of the children on the condition that they attend the religious classes, get reports on whether they attend, and hold the other children in the school building until the religious hour is over. As we attempted to make categorically clear, the McCollum decision would have been the same if the religious classes had not been held in the school buildings. We said:
4
'Here not only are the state's tax-supported public school buildings used for the dissemination of religious doctrines. The State also affords sectarian groups an invaluable aid in that it helps to provide pupils for thier religious classes through use of the state's compulsory public school machinery. This is not separation of Church and State.' (Emphasis supplied.) McCollum v. Board of Education, supra, 333 U.S. at page 212, 68 S.Ct. at page 465.
5
McCollum thus held that Illinois could not constitutionally manipulate the compelled classroom hours of its compulsory school machinery so as to channel childrn into sectarian classes. Yet that is exactly what the Court holds New York can do.
6
I am aware that our McCollum decision on separation of Church and State has been subjected to a most searching examination throughout the country. Probably few opinions from this Court in recent years have attracted more attention or stirred wider debate. Our insistence on 'a wall between Church and State which must be kept high and impregnable' has seemed to some a correct exposition of the philosophy and a true interpretation of the language of the First Amendment to which we should strictly adhere.1 With equal conviction and sincerity, others have thought the McCollum decision fundamentally wrong2 and have pledged continuous warfare against it.3 The opinions in the court below and the briefs here reflect these diverse viewpoints. In dissenting today, I mean to do more than give routine approval to our McCollum decision. I mean also to reaffirm my faith in the fundamental philosophy expressed in McCollum and Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711. That reaffirmance can be brief because of the exhaustive opinions in those recent cases.
7
Difficulty of decision in the hypothetical situations mentioned by the Court, but not now before us, should not confuse the issues in this case. Here the sole question is whether New York can use its compulsory education laws to help religious sects get attendants presumably too unenthusiastic to go unless moved to do so by the pressure of this state machinery. That this is the plan, purpose, design and consequence of the New York program cannot be denied. The state thus makes religious sects beneficiaries of its power to compel children to attend secular schools. Any use of such coercive power by the state to help or hinder some religious sects or to prefer all religious sects over nonbelievers or vice versa is just what I think the First Amendment forbids. In considering whether a state has entered this forbidden field the question is not whether it has entered too far but whether it has entered at all. New York is manipulating its compulsory education laws to help religious sects get pupils. This is not separation but combination of Church and State.
8
The Court's validation of the New York system rests in part on its statement that Americans are 'a religious people whose institutions presuppose a Supreme Being.' This was at least as true when the First Amendment was adopted; and it was just as true when eight Justices of this Court invalidated the released time system in McCollum on the premise that a state can no more 'aid all religions' than it can aid one.4 It was precisely because Eighteenth Century Americans were a religious people divided into many fighting sects that we were given the constitutional mandate to keep Church and State completely separate. Colonial history had already shown that, here as elsewhere zealous sectarians entrusted with governmental power to further their causes would sometimes torture, maim and kill those they branded 'heretics,' 'atheists' or 'agnostics.'5 The First Amendment was therefore to insure that no one powerful sect or combination of sects could use political or governmental power to punish dissenters whom they could not convert to their faith. Now as then, it is only by wholly isolating the state from the religious sphere and compelling it to be completely neutral, that the freedom of each and every denomination and of all nonbelievers can be maintained. It is this neutrality the Court abandons today when it treats New York's coercive system as a program which merely 'encourages religious instruction or cooperates with religious authorities.' The abandonment is all the more dangerous to liberty because of the Court's legal exaltation of the orthodox and its derogation of unbelievers.
9
Under our system of religious freedom, people have gone to their religious sanctuaries not because they feared the law but because they loved their God. The choice of all has been as free as the choice of those who answered the call to worship moved only by the music of the old Sunday morning church bells. The spiritual mind of man has thus been free to believe, disbelieve, or doubt, without repression, great or small, by the heavy hand of government. Statutes authorizing such repression have been stricken. Before today, our judicial opinions have refrained from drawing invidious distinctions between those who believe n no religion and those who do believe. The First Amendment has lost much if the religious follower and the atheist are no longer to be judicially regarded as entitled to equal justice under law.
10
State help to religion injects political and party prejudices into a holy field. It too often substitutes force for prayer, hate for love, and persecution for persuasion. Government should not be allowed, under cover of the soft euphemism of 'co-operation,' to steal into the sacred area of religious choice.
11
Mr. Justice FRANKFURTER, dissenting. DP By way of emphasizing my agreement with Mr. Justice JACKSON'S dissent, I add a few words.
12
The Court tells us that in the maintenance of its public schools, '(The State government) can close its doors or suspend its operations' so that its citizens may be free for religious devotions or instruction. If that were the issue, it would not rise to the dignity of a constitutional controversy. Of course a State may provide that the classes in its schools shall be dismissed, for any reason, or no reason, on fixed days, or for special occasions. The essence of this case is that the school system did not 'close its doors' and did not 'suspend its operations'. There is all the difference in the world between letting the children out of school and letting some of them out of school into religious classes. If every one is free to make what use he will of time wholly unconnected from schooling required by law—those who wish sectarian instruction devoting it to that purpose, those who have ethical instruction at home, to that, those who study music, to that—then of course there is no conflict with the Fourteenth Amendment.
13
The pith of the case is that formalized religious instruction is substituted for other school activity which those who do not participate in the released-time program are compelled to attend. The school system is very much in operation during this kind of released time. If its doors are closed, they are closed upon those students who do not attend the religious instruction, in order to keep them within the school. That is the very thing which raises the constitutional issue. It is not met by disregarding it. Failure to discuss this issue does not take it out of the case.
14
Again, the Court relies upon the absence from the record of evidence of coercion in the operation of the system. 'If in fact coercion were used,' according to the Court, 'if it were established that any one or more teachers were using their office to persuade or force students to take the religious instruction, a wholly different case would be presented.' Thus, 'coercion' in the abstract is acknowledged to be fatal. But the Court disregards the fact that as the case comes to us, there could be no proof of coercion, for the appellants were not allowed to make proof of it. Appellants alleged that 'The operation of the released time program has resulted and inevitably results in the exercise of pressure and coercion upon parents and children to secure attendance by the children for religious instruction.' This allegation—that coercion was in fact present and is inherent in the system, no matter what disavowals might be made in the operating regulations—was denied by respondents. Thus were drawn issues of fact which cannot be determined, on any conceivable view of judicial notice, by judges out of their own knowledge or experience. Appellants sought an opportunity to adduce evidence in support of these allegations at an appropriate trial. And though the courts below cited the concurring opinion in McCollum v. Board of Education, 333 U.S. 203, 226, 68 S.Ct. 461, 472, 92 L.Ed. 249, to 'emphasize the importance of detailed analysis of the facts to which the Constitutional test of Separation is to be applied', they denied that opportunity on the ground that such proof was irrelevant to the issue of constitutionality. See 198 Misc. 631, 641, 99 N.Y.S.2d 339, 348 349; 303 N.Y. 161, 174—175, 100 N.E.2d 463, 469.1
15
When constitutional issues turn on facts, it is a strange procedure indeed not to permit the facts to be established. When such is the case, there are weighty considerations for us to require the State court to make its determination only after a thorough canvass of all the circumstances and not to bar them from consideration. Cf. Chastleton Corp. v. Sinclair, 264 U.S. 543, 44 S.Ct. 405, 68 L.Ed. 841; Hammond v. Schappi Bus Line, 275 U.S. 164, 48 S.Ct. 66, 72 L.Ed. 218. If we are to decide this case on the present record, however, a strict adherence to the usage of courts in ruling on the sufficiency of pleadings would require us to take as admitted the facts pleaded in the appellants' complaint, including the fact of coercion, actual and inherent. See Judge Fuld, dissenting below, 303 N.Y. at page 185, 100 N.E.2d at page 475. Even on a more latitudinarian view, I cannot see how a finding that coercion was absent, deemed critical by this Court in sustaining the practice, can be made here, when appellants were prevented from making a timely showing of coercion because the courts below thought it irrelevant.
16
The result in the McCollum case, 333 U.S. 203, 68 S.Ct. 461, was based on principles that received unanimous acceptance by this Court, barring only a single vote. I agree with Mr. Justice BLACK that those principles are disregarded in reaching the result in this case.2 Happily they are not disavowed by the Court. From this I draw the hope that in future variations of the problem which are bound to come here, these principles may again be honored in the observance.
17
The deeply divisive controversy aroused by the attempts to secure public school pupils for sectarian instruction would promptly end if the advocates of such instruction were content to have the school 'close its doors or suspend its operations'—that is, dismiss classes in their entirety, without discrimination instead of seeking to use the public schools as the instrument for securing attendance at denominational classes. The unwillingness of the promoters of this movement to dispense with such use of the public schools betrays a surprising want of confidence in the inherent power of the various faiths to draw children to outside sectarian classes—an attitude that hardly reflects the faith of the greatest religious spirits.
18
Mr. Justice JACKSON, dissenting.
19
This released time program is founded upon a use of the State's power of coercion, which, for me, determines its unconstitutionality. Stripped to its essentials, the plan has two stages, first, that the State compel each student to yield a large part of his time for public secular education and, second, that some of it be 'released' to him on condition that he devote it to sectarian religious purposes.
20
No one suggests that the Constitution would permit the State directly to require this 'released' time to be spent 'under the control of a duly constituted religious body.' This program accomplishes that forbidden result by indirection. If public education were taking so much of the pupils' time as to injure the public or the students' welfare by encroaching upon their religious opportunity, simply shortening everyone's school day would facilitate voluntary and optional attendance at Church classes. But that suggestion is rejected upon the ground that if they are made free many students will not go to the Church. Hence, they must be deprived of freedom for this period, with Church attendance put to them as one of the two permissible ways of using it.
21
The greater effectiveness of this system over voluntary attendance after school hours is due to the truant officer who, if the youngster fails to go to the Church school, dogs him back to the public schoolroom. Here schooling is more or less suspended during the 'released time' so the nonreligious attendants will not forge ahead of the churchgoing absentees. But it serves as a temporary jail for a pupil who will not go to Church. It takes more subtlety of mind than I possess to deny that this is governmental constraint in support of religion. It is as unconstitutional, in my view, when exerted by indirection as when exercised forthrightly.
22
As one whose children, as a matter of free choice, have been sent to privately supported Church schools, I may challenge the Court's suggestion that opposition to this plan can only be antireligious, atheistic, or agnostic. My evangelistic brethren confuse an objection to compulsion with an objection to religion. It is possible to hold a faith with enough confidence to believe that what should be rendered to God does not need to be decided and collected by Caesar.
23
The day that this country ceases to be free for irreligion it will cease to be free for religion—except for the sect that can win political power. The same epithetical jurisprudence used by the Court today to beat down those who oppose pressuring children into some religion can devise as good epithets tomorrow against those who object to pressuring them into a favored religion. And, after all, if we concede to the State power and wisdom to single out 'duly constituted religious' bodies as exclusive alternatives for compulsory secular instruction, it would be logical to also uphold the power and wisdom to choose the true faith among those 'duly constituted.' We start down a rough road when we begin to mix compulsory public education with compulsory godliness.
24
A number of Justices just short of a majority of the majority that promulgates today's passionate dialectics joined in answering them in Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649. The distinction attempted between that case and this is trivial, almost to the point of cynicism, magnifying its nonessential details and disparaging compulsion which was the underlying reason for invalidity. A reading of the Court's opinion in that case along with its opinion in this case will show such difference of overtones and undertones as to make clear that the McCollum case has passed like a storm in a teacup. The wall which the Court was professing to erect between Church and State has become even more warped and twisted than I expected. Today's judgment will be more interesting to students of psychology and of the judicial processes than to students of constitutional law.
1
The New York City released time program is embodied in the following provisions:
(a) N.Y.Education Law, McK.Consol.Laws, c. 16, § 3210, subdiv. 1(b), which provides that 'Absence for religious observance and education shall be permitted under rules that the commissioner shall establish.'
(b) Regulations of the Commissioner of Education of the State of New York, Art. 17, § 154, 1 N.Y.Official Code Comp. 683, which provide for absence during school hours for religious observance and education outside the school grounds (par. 1), where conducted by or under the control of a duly constituted religious body (par. 2). Students must obtain written requests from their parents or guardians to be excused for such training (par. 1), and must register for the training and have a copy of their registration filed with the public school authorities (par. 3). Weekly reports of their attendance at such religious schools must be filed with their principal or teacher (par. 4). Only one hour a week is to be allowed for such training, at the end of a class session (par. 5), and where more than one religious school is conducted, the hour of release shall be the same for all religious schools (par. 6).
(c) Regulations of the Board of Education of the City of New York, which provide similar rules supplementing the State Commissioner's regulations, with the following significant amplifications: No announcement of any kind will be made in the public schools relative to the program (rule 1). The religious organizations and parents will assume full responsibility for attendance at the religious schools and will explain any failures to attend on the weekly attendance reports (rule 3). Students who are released will be dismissed from school in the usual way (rule 5). There shall be no comment by any principal or teacher on attendance or nonattendance of any pupil upon religious instruction (rule 6).
2
The First Amendment reads in relevant part, 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof'.
3
See Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 117; Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213; Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292.
4
No problem of this Court's jurisdiction is posed in this case since, unlike the appellants in Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. —-, appellants here are parents of children currently attending schools subject to the released time program.
5
See, e.g., Beckes, Weekday Religious Education (National Conference of Christians and Jews, Human Relations Pamphlet No. 6); Butts, American Tradition in Religion and Education, pp. 188, 199; Moehlman, The Wall of Separation between Church and State, pp. 123, 155 ff.; Moehlman, The Church as Educator, pp. 103 ff.; Moral and Spiritual Values in the Public Schools (Educational Policies Commission, 1951); Newman, The Sectarian Invasion of Our Public Schools; Public School Time for Religious Education, 12 Jewish Education 130 (January, 1941); Religious Instruction On School Time, 7 Frontiers of Democracy 72 (1940); Released Time for Religious Education in New York City's Schools (Public Education Association, June 30, 1943); Released Time for Religious Education in New York City's Schools (Public Education Association, June 30, 1945); Released Time for Religious Education in New York City Schools (Public Education Association, 1949); 2 Stokes, Church and State in the United States, pp. 523—548; The Status of Religious Education In The Public Schools (National Education Association).
6
Nor is there any indication that the public schools enforce attendance at religious schools by punishing absentees from the released time programs for truancy.
7
Appellants contend that they should have been allowed to prove that the system is in fact administered in a coercive manner. The New York Court of Appeals declined to grant a trial on this issue, noting, inter alia, that appellants had not properly raised their claim in the manner required by state practice. 303 N.Y. 161, 174, 100 N.E.2d 463, 469. This independent state ground for decision precludes appellants from raising the issue of maladministration in this proceeding. See Louisville & Nashville R. Co. v. Woodford, 234 U.S. 46, 51, 34 S.Ct. 739, 741, 58 L.Ed. 1202; Atlantic Coast Line R. Co. v. Mims, 242 U.S. 532, 535, 37 S.Ct. 188, 189, 61 L.Ed. 476; American Surety Co. v. Baldwin, 287 U.S. 156, 169, 53 S.Ct. 98, 102, 77 L.Ed. 231.
The only allegation in the complaint that bears on the issue is that the operation of the program 'has resulted and inevitably results in the exercise of pressure and coercion upon parents and children to secure attendance by the children for religious instruction.' But this charge does not even implicate the school authorities. The New York Court of Appeals was therefore generous in labeling it a 'conclusory' allegation. 303 N.Y. at page 174, 100 N.E.2d at page 469. Since the allegation did not implicate the school authorities in the use of coercion, there is no basis for holding that the New York Court of Appeals under the guise of local practice defeated a federal right in the manner condemned by Brown v. Western R. Co. of Alabama, 338 U.S. 294, 70 S.Ct. 105, 94 L.Ed. 100, and related cases.
8
Three of us—The Chief Justice, Mr. Justice Douglas and Mr. Justice Burton—who join this opinion agreed that the 'released time' program involved in the McCollum case was unconstitutional. It was our view at the time that the present type of 'released time' program was not prejudged by the McCollum case, a conclusion emphasized by the reservation of the question in the separate opinion by Mr. Justice Frankfurter in which Mr. Justice Burton joined. See 333 U.S. a page 225, 68 S.Ct. at page 472, where it was said, 'Of course, 'released time' as a generalized conception, undefined by differentiating particularities, is not an issue for Constitutional adjudication. Local programs differ from each other in many and crucial respects. * * * It is only when challenge is made to the share that the public schools have in the execution of a particular 'released time' program that close judicial scrutiny is demanded of the exact relation between the religious instruction and the public educational system in the specific situation before the Court.'
1
See, e.g., Newman, The Sectarian Invasion of Our Public Schools; Moehlman, The Wall of Separation between Church and State; Thayer, The Attack upon the American Secular School, pp. 179—199; Butts, The American Tradition in Religion and Education, pp. 201—208. See also Symposium on Religion and the State, 14 Law & Contem.Prob. 1—159.
2
See, e.g., O'Neill, Religion and Education Under the Constitution, pp. 219—253; Parsons, The First Freedom, pp. 158 178; Van Dusen, God in Education. See also Symposium on Religion and the State, supra.
3
See Moehlman, supra, n. 1, at p. 42. O'Neill, supra, n. 2, at pp. 254—272.
4
A state policy of aiding 'all religions' necessarily requires a governmental decision as to what constitutes 'a religion.' Thus is created a governmental power to hinder certain religious beliefs by denying their character as such. See, e.g., the regulations of the New York Commissioner of Education providing that, 'The courses in religious observance and education must be maintained and operated by or under the control of duly constituted religious bodies.' (Emphasis added.) Art. 17, § 154, 1 N.Y. Official Code Comp. 683. This provides precisely the kind of censorship which we have said the Constitution forbids. Cantwell v. Connecticut, 310 U.S. 296, 305, 60 S.Ct. 900, 904, 84 L.Ed. 1213.
5
Wertenbaker, The Puritan Oligarchy, 213—214.
1
Issues that raise federal claims cannot be foreclosed by the State court treating the allegations as 'conclusory in character'. 303 N.Y. 161, 174, 100 N.E.2d 463, 469. This is so even when a federal statute is involved. Brown v. Western R. Co. of Alabama, 338 U.S. 294, 70 S.Ct. 105, 94 L.Ed. 100. A fortiori when the appeal is to the Constitution of the United States.
2
The reservation made by four of the Justices in the McCollum case did not, of course, refer to the New York situation any more than it referred to that form of 'released time' under which the whole student body is dismissed. This was the reservation:
'We do not consider, as indeed we could not, school programs not before us which, though colloquially characterized as 'released time,' present situations differing in aspects that may well be constitutionally crucial. Different forms which 'released time' has taken during more than thirty years of growth include programs which, like that before us, could not withstand the test of the Constitution; others may be found unexceptionable.' 333 U.S. at page 231, 68 S.Ct. at page 475.
| 23
|
343 U.S. 250
72 S.Ct. 725
96 L.Ed. 919
BEAUHARNAISv.PEOPLE of the STATE OF ILLINOIS.
No. 118.
Argued Nov. 28—29, 1951.
Decided April 28, 1952.
Rehearing Denied June 9, 1952.
See 343 U.S. 988, 72 S.Ct. 1070.
Mr. Alfred A. Albert, New York City, for petitioner.
Mr. William C. Wines, Chicago, Ill., for respondent.
Mr. Justice FRANKFURTER delivered the opinion of the Court.
1
The petitioner was convicted upon information in the Municipal Court of Chicago of violating § 224a of Division 1 of the Illinois Criminal Code, Ill.Rev.Stat.1949, c. 38, § 471. He was fined $200. The section provides:
2
'It shall be unlawful for any person, firm or corporation to manufacture, sell, or offer for sale, advertise or publish, present or exhibit in any public place in this state any lithograph, moving picture, play, drama or sketch, which publication or exhibition portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion which said publication or exhibition exposes the citizens of any race, color, creed or religion to contempt, derision, or obloquy or which is productive of breach of the peace or riots. * * *'
3
Beauharnais challenged the statute as violating the liberty of speech and of the press guaranteed as against the States by the Due Process Clause of the Fourteenth Amendment, and as too vague, under the restrictions implicit in the same Clause, to support conviction for crime. The Illinois courts rejected these contentions and sustained defendant's conviction. 408 Ill. 512, 97 N.E.2d 343. We granted certiorari in view of the serious questions raised concerning the limitations imposed by the Fourteenth Amendment on the power of a State to punish utterances promoting friction among racial and religious groups. 342 U.S. 809, 72 S.Ct. 39.
4
The information, cast generally in the terms of the statute, charged that Beauharnais 'did unlawfully * * * exhibit in public places lithographs, which publications portray depravity, criminality, unchastity or lack of virtue of citizens of Negrorace and color and which exproses (sic) citizens of Illinois of the Negro race and color to contempt, derision, or obloquy * * *.' The lithograph complained of was a leaflet setting forth a petition calling on the Mayor and City Council of Chicago 'to halt the further encroachment, harassment and invasion of white people, their property, neighborhoods and persons, by the Negro * * *.' Below was a call for 'One million self respecting white people in Chicago to unite * * *.' with the statement added that 'If persuasion and the need to prevent the white race from becoming mongrelized by the negro will not unite us, then the aggressions * * * rapes, robberies, knives, guns and marijuana of the negro, surely will.' This, with more language, similar if not so violent, concluded with an attached application for membership in the White Circle League of America, Inc.
5
The testimony at the trial was substantially undisputed. From it the jury could find that Beauharnais was president of the White Circle League; that, at a meeting on January 6, 1950, he passed out bundles of the lithographs in question, together with other literature, to volunteers for distribution on downtown Chicago street corners the following day; that he carefully organized that distribution, giving detailed instructions for it; and that the leaflets were in fact distributed on January 7 in accordance with his plan and instructions. The court, together with other charges on burden of proof and the like, told the jury 'if you find * * * that the defendant, Joseph Beauharnais, did * * * manufacture, sell, or offer for sale, advertise or publish, present or exhibit in any public place the lithograph * * * then you are to find the defendant guilty * * *.' He refused to charge the jury, as requested by the defendant, that in order to convict they must find 'that the article complained of was likely to produce a clear and present danger of a serious substantive evil that rises for above public inconvenience, annoyance or unrest.' Upon this evidence and these instructions, the jury brought in the conviction here for review.
6
The statute before us is not a catchall enactment left at large by the State court which applied it. Cf. Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Cantwell v. State of Connecticut, 310 U.S. 296, 307, 60 S.Ct. 900, 904, 84 L.Ed. 1213. It is a law specifically directed at a defined evil, its language drawing from history and practice in Illinois and in more than a score of other jurisdictions a meaning confirmed by the Supreme Court of that State in upholding this conviction. We do not, therefore, parse the statute as grammarians or treat it as an abstract exercise in lexicography. We read it in the animating context of well-defined usage, Nash v. United States, 229 U.S. 373, 33 S.Ct. 780, 57 L.Ed. 1232, and State court construction which determines its meaning for us. Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049; Chaplinsky v. State of New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031.
7
The Illinois Supreme Court tells us that § 224a 'is a form of criminal libel law'. 408 Ill. 512, 517, 97 N.E.2d 343, 346. The defendant, the trial court and the Supreme Court consistently treated it as such. The defendant offered evidence tending to prove the truth of parts of the utterance, and the courts below considered and disposed of this offer in terms of ordinary criminal libel precedents.1 Section 224a does not deal with the defense of truth, but by the Illinois Constitution, Art. II, § 4, S.H.A., 'in all trials for libel, both civil and criminal, the truth, when published with good motives and for justifiable ends, shall be a sufficient defense.' See also Ill.Rev.Stat., 1949, c. 38, § 404. Similarly, the action of the trial court in deciding as a matter of law the libelous character of the utterance, leaving to the jury only the question of publication, follows the settled rule in prosecutions for libel in Illinois and other States.2 Moreover, the Supreme Court's characterization of the words prohibited by the statute as those 'liable to cause violence and disorder' paraphrases the traditional justification for punishing libels criminally, namely their 'tendency to cause breach of the peace.'3
8
Libel of an individual was a common-law crime, and thus criminal in the colonies. Indeed, at common law, truth or good motives was no defense. In the first decades after the adoption of the Constitution, this was changed by judicial decision, statute or constitution in most States, but nowhere was there any suggestion that the crime of libel be abolished.4 Today, every American jurisdiction—the forty-eight States, the District of Columbia, Alaska, Hawaii and Puerto Rico—punish libels directed at individuals.5 'There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words—those which by their veryutterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. 'Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.' Cantwell v. State of Connecticut, 310 U.S. 296, 309, 310, 60 S.Ct. 900, 906, 84 L.Ed. 1213.' Such were the views of a unanimous Court in Chaplinsky v. State of New Hampshire, supra, 315 U.S. at pages 571—572, 62 S.Ct. at page 769.6
9
No one will gainsay that it is libelous falsely to charge another with being a rapist, robber, carrier of knives and guns, and user of marijuana. The precise question before us, then, is whether the protection of 'liberty' in the Due Process Clause of the Fourteenth Amendment prevents a State from punishing such libels—as criminal libel has been defined, limited and constitutionally recognized time out of mind—directed at designated collectivities and flagrantly disseminated. There is even authority, however dubious, that such utterances were also crimes at common law.7 It is certainly clear that some American jurisdictions have sanctioned their punishment under ordinary criminal libel statutes.8 We cannot say, however, that the question is concluded by history and practice. But if an utterance directed at an individual may be the object of criminal sanctions, we cannot deny to a State power to punish the same utterance directed at a defined group, unless we can say that this a wilful and purposeless restriction unrelated to the peace and well-being of the State.
10
Illinois did not have to look beyond her own borders or await the tragic experience of the last three decades9 to conclude that wilful purveyors of falsehood concerning racial and religious groups promote strife and tend powerfully to obstruct the manifold adjustments required for free, ordered life in a metropolitan, polyglot community. From the murder of the abolitionist Love-joy in 1837 to the Cicero riots of 1951, Illinois has been the scene of exacerbated tension between races, often flaring into violence and destruction.10 In many of these outbreaks, utterances of the character here in question, so the Illinois legislature could conclude, played a significant part.11 The law was passed on June 29, 1917, at a time when the State was struggling to assimilate vast numbers of new inhabitants, as yet concentrated in discrete racial or national or religious groups foreign-born brought to it by the crest of the great wave of immigration, and Negroes attracted by jobs in war plants and the allurements of northern claims.12 Nine years erlier, in the very city where the legislature sat, what is said to be the first northern race riot had cost the lives of six people, left hundreds of Negroes homeless and shocked citizens into action far beyond the borders of the State.13 Less than a month before the bill was enacted, East St. Louis had seen a day's rioting, prelude to an out-break, only four days after the bill became law, so bloody that it led to Congressional investigation.14 A series of bombings had begun which was to culminate two years later in the awful race riot which held Chicago in its grip for seven days in the summer of 1919.15 Nor has tension and violence between the groups defined in the statute been limited in Illinois to clashes between whites and Negroes.
11
In the face of this history and its frequent obligato of extreme racial and religious propaganda, we would deny experience to say that the Illinois legislature was without reason in seeking ways to curb false or malicious defamation of racial and religious groups, made in public places and by means calculated to have a powerful emotional impact on those to whom it was presented. 'There are limits to the exercise of these liberties (of speech and of the press). The danger in these times from the coercive activities of those who in the delusion of racial or religious conceit would incite violence and breaches of the peace in order to deprive others of their equal right to the exercise of their liberties, is emphasized by events familiar to all. These and other transgressions of those limits the states appropriately may punish.'16 This was the conclusion, again of a unanimous Court, in 1940. Cantwell v. State of Connecticut, supra, 310 U.S. at page 310, 60 S.Ct. at page 906.
12
It may be argued, and weightily, that this legislation will not help matters; that tension and on occasion violence between racial and religious groups must be traced to causes more deeply embedded in our society than the rantings of modern Know-Nothings.17 Only those lacking responsible humility will have a confident solution for problems as intractable as the frictions attributable to differences of race, color or religion. This being so, it would be out of bounds for the judiciary to deny the legislature a choice of policy, provided it is not unrelated to the problem and not forbidden by some explicit limitation on the State's power. That the legislative remedy might not in practice mitigate the evil, or might itself raise new problems, would only manifest once more the para-dox of reform. It is the price to be paid for the trial-and-error inherent in legislative efforts to deal with obstinate social issues. 'The science of government is the most abstruse of all sciences; if, indeed, that can be called a science which has but few fixed principles, and practically consists in little more than the exercise of a sound discretion, applied to the exigencies of the state as they arise. It is the science of experiment.' Anderson v. Dunn, 6 Wheat. 204, 226, 5 L.Ed. 242. Certainly the Due Process Clause does not require the legislature to be in the vanguard of science especially sciences as young as human ecology and cultural anthropology. See Tigner v. State of Texas, 310 U.S. 141, 148, 60 S.Ct. 879, 882, 84 L.Ed. 1124.
13
Long ago this Court recognized that the economic rights of an individual may depend for the effectiveness of their enforcement on rights in the group, even though not formally corporate, to which he belongs. American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 189, 42 S.Ct. 72, 73, 66 L.Ed. 189. Such group-protection on behalf of the individual may, for all we know, be a need not confined to the part that a trade union plays in effectuating rights abstractly recognized as belonging to its members. It is not within our competence to confirm or deny claims of social scientists as to the dependence of the individual on the position of his racial or religious group in the community. It would, however, be arrant dogmatism, quite outside the scope of our authority in passing on the powers of a State, for us to deny that the Illinois Legislature may warrantably believe that a man's job and his educational opportunities and the dignity accorded him may depend as much on the reputation of the racial and religious group to which he willy-nilly belongs, as on his own merits. This being so, we are precluded from saying that speech concededly punishable when immediately directed at individuals cannot be outlawed if directed at groups with whose position and esteem in society the affiliated individual may be inextricably involved.
14
We are warned that the choice open to the Illinois legislature here may be abused, that the law may be discriminatorily enforced; prohibiting libel of a creed or of a racial group, we are told, is but a step from prohibiting libel of a political party.18
15
Every power may be abused, but the possibility of abuse is a poor reason for denying Illinois the power to adopt measures against criminal libels sanctioned by centuries of Anglo-American law. 'While this Court sits' it retains and exercises authority to nullify action which encroaches on freedom of utterance under the guise of punishing libel. Of course discussion cannot be denied and the right, as well as the duty, of criticism must not be stifled.
16
The scope of the statute before us, as construed by the Illinois court, disposes of the contention that the conduct prohibited by the law is so ill-defined that judges and juries in applying the statute and men in acting cannot draw from it adequate standards to guide them. The clarifying construction and fixed usage which govern the meaning of the enactment before us were not present, so the Court found, in the New York law held invalid in Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840. Nor, thus construed and limited, is the act so broad that the general verdict of guilty on an indictment drawn in the statutory language might have been predicated on constitutionally protected conduct. On this score, the conviction here reviewed differs from those upset in Stromberg v. People of State of California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117; Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; and Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131. Even the latter case did not hold that the unconstitutionality of a statute is established because the speech prohibited by it raises a ruckus.
17
It is suggested that while it was clearly within the constitutional power of Illinois to punish this utterance if the proceeding were properly safeguarded, in this particular case Illinois denied the defendant rights which the Due Process Clause commands. Specifically, it is argued that the defendant was not permitted to raise at the trial defenses constitutionally guaranteed in a criminal libel prosecution: (1) the defense of truth; (2) justification of the utterance as 'fair comment'; and (3) its privilege as a means for redressing grievances.
18
Neither by proffer of evidence, requests for instructions, nor motion before or after verdict did the defendant seek to justify his utterance as 'fair comment' or as privileged. Nor has the defendant urged as a ground for reversing his conviction in this Court that his opportunity to make those defenses was denied below. And so, whether a prosecution for libel of a racial or religious group is unconstitutionally invalid where the State did deny the defendant such opportunities is not before us.19 Certainly the State may cast the burden of justifying what is patent defamation upon the defamer. The benefits of hypothetical defenses, never raised below or pressed upon us, are not to be invoked in the abstract.
19
As to the defense of truth, Illinois in common with many States requires a showing not only that the utterance state the facts, but also that the publication be made 'with good motives and for justifable ends'. Ill.Const. Art. II, § 4.20 Both elements are necessary if the defense is to prevail. What has been called 'the common sense of American criminal law,' as formulated, with regard to necessary safeguards in criminal libel prosecutions, in the New York Constitutional of 1821, Art. VII, § 8, has been adopted in terms by Illinois. The teaching of a century and a half of criminal libel prosecutions in this country would go by the board if we were to hold that Illinois was not within her rights in making this combined requirement. Assuming that defendant's offer of proof directed to a part of the defense was adequate,21 it did not satisfy the entire requirement which Illinois could exact.22
20
Libelous utterances not being within the area of constitutionally protected speech, it is unnecessary, either for us or for the State courts, to consider the issues behind the phrase 'clear and present danger.' Certainly no one would contend that obscene speech, for example, may be punished only upon a showing of such circumstances. Libel, as we have seen, is in the same class.
21
We find no warrant in the Constitution for denying to Illinois the power to pass the law here under attack.23 But it bears repeating—although it should not—that our finding that the law is not constitutionally objectionable carries no implication of approval of the wisdom of the legislation or of its efficacy. These questions may raise doubts in our minds as well as in others. It is not for us, however, to make the legislative judgment. We are not at liberty to erect those doubts into fundamental law.
22
Affirmed.
23
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS concurs, dissenting.
24
This case is here because Illinois inflicted criminal punishment on Beauharnais for causing the distribution of leaflets in the city of Chicago. The conviction rests on the leaflet's contents, not on the time, manner or place of distribution. Beauharnais is head of an organization that opposes amalgamation and favors segregation of white and colored people. After discussion, an assembly of his group decided to petition the mayor and council of Chicago to pass laws for segregation. Volunteer members of the group agreed to stand on street corners, solicit signers to petitions addressed to the city authorities, and distribute leaflets giving information about the group, its beliefs and its plans. In carrying out this program a solicitor handed out a leaflet which was the basis of this prosecution. Since the Court opinion quotes only parts of the leaflet, I am including all of it as an appendix to this dissent.
I.
25
That Beauharnais and his group were making a genuine effort to petition their elected representatives is not disputed. Even as far back as 1689, the Bill of Rights exacted of William & Mary said: 'It is the Right of the Subjects to petition the King, and all Commitments and Prosecutions for such petitioning are illegal.'1 And 178 years ago the Declaration of Rights of the Continental Congress proclaimed to the monarch of that day that his American subjects had 'a right peaceably to assemble, consider of their grievances, and petition the King; and that all prosecutions, prohibitory proclamations, and commitments for the same, are illegal.'2 After independence was won, Americans stated as the first unequivocal command of their Bill of Rights: 'Congress shall make no law * * * abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.' Without distortion, this First Amendment could not possibly be read so as to hold that Congress has power to punish Beauharnais and others for petitioning Congress as they have here sought to petition the Chicago authorities. See e.g., Bridges v. State of California, 314 U.S. 252, 277, 62 S.Ct. 190, 201, 86 L.Ed. 192. And we have held in a number of prior cases that the Fourteenth Amendment makes the specific prohibitions of the First Amendment equally applicable to the states.3
26
In view of these prior holdings, how does the Court justify its holding today that states can punish people for exercising the vital freedoms intended to be safeguarded from suppression by the First Amendment? The prior holdings are not referred to; the Court simply acts on the bland assumption that the First Amendment is wholly irrelevant. It is not even accorded the respect of a passing mention. This follows logically, I suppose, from recent constitutional doctrine which appears to measure state laws solely by this Court's notions of civilized 'canons of decency,' reasonableness, etc. See, e.g., Rochin v. People of California, 342 U.S. 165, 169, 72 S.Ct. 205, 207. Under this 'reasonableness' test, state laws abridging First Amendment freedoms are sustained if found to have a 'rational basis.' But in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 639, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628, we said:
27
'In weighing arguments of the parties it is important to distinguish between the due process clause of the Fourteenth Amendment as an instrument for transmitting the principles of the First Amendment and those cases in which it is applied for its own sake. The test of legislation which collides with the Fourteenth Amendment, because it also collides with the principles of the First, is much more definite than the test when only the Fourteenth is involved. Much of the vagueness of the due process clause disappears when the specific prohibitions of the First become its standard. The right of a State to regulate, for example, a public utility may well include, so far as the due process test is concerned, power to impose all of the restrictions which a legislature may have a 'rational basis' for adopting. But freedoms of speech and of press, of assembly, and of worship may not be infringed on such slender grounds.'
28
Today's case degrades First Amendment freedoms to the 'rational basis' level. It is now a certainty that the new 'due process' coverall offers far less protection to liberty than would adherence to our former cases compelling states to abide by the unequivocal First Amendment command that its defined freedoms shall not be abridged.
29
The Court's holding here and the constitutional doctrine behind it leave the rights of assembly, petition, speech and press almost completely at the mercy of state legislative, executive, and judicial agencies. I say 'almost' because state curtailment of these freedoms may still be invalidated if a majority of this Court conclude that a particular infringement is 'without reason,' or is 'a wilful and purposeless restriction unrelated to the peace and well being of the State.' But lest this encouragement should give too much hope as to how and when this Court might protect these basic freedoms from state invasion, we are cautioned that state legislatures must be left free to 'experiment' and to make 'legislative judgments. We are told that mistakes may be made during the legislative process of curbing public opinion. In such event the Court fortunately does not leave those mistakenly curbed, or any of us for that matter, unadvised. Consolation can be sought and must be found in the philosophical reflection that state legislative error in stifling speech and press 'is the price to be paid for the trial-and-error inherent in legislative efforts to deal with obstinate social issues.' My own belief is that no legislature is charged with the duty or vested with the power to decide what public issues Americans can discuss. In a free country that is the individual's choice, not the state's. State experimentation in curbing freedom of expression is startling and frightening doctrine in a country dedicated to self-government by its people. I reject the holding that either state or nation can punish people for having their say in matters of public concern.
II.
30
The Illinois statute upheld by the Court makes it a crime:
31
1. for 'any person, firm or corporation',
32
2. to 'manufacture, sell, or offer for sale, advertise or publish, present or exhibit in any public place', 3. any 'lithograph (construed to include any printed matter), moving picture, play, drama or sketch,'
33
4. which portrays 'depravity, criminality, unchastity, or lack of virtue',
34
5. of 'a class of citizens, of any race, color, creed or religion',
35
6. and exposes such a class to 'contempt, derision, or obloquy',
36
7. or 'is productive of breach of the peace or riots.'
37
This statute imposes state censorship over the theater, moving pictures, radio, television, leaflets, magazines, books and newspapers. No doubt the statute is broad enough to make criminal the 'publication, sale, presentation or exhibition' of many of the world's great classics, both secular and religious.
38
The Court condones this expansive state censorship by painstakingly analogizing it to the law of criminal libel. As a result of this refined analysis, the Illinois statute emerges labeled a 'group libel law.' This label may make the Court's holding more palatable for those who sustain it, but the sugar-coating does not make the censorship less deadly. However tagged, the Illinois law is not that criminal libel which has been 'defined, limited and constitutionally recognized time out of mind'.4 For as 'CONSTITUTIONALLY RECOGNIZED' THAT CRIME has provided for punishment of false, malicious, scurrilous charges against individuals, not against huge groups. This limited scope of the law of criminal libel is of no small importance. It has confined state punishment of speech and expression to the narrowest of areas involving nothing more than purely private feuds. Every expansion of the law of criminal libel so as to punish discussions of matters of public concern means a corresponding invasion of the area dedicated to free expression by the First Amendment.
39
Prior efforts to expand the scope of criminal libel beyond its traditional boundaries have not usually met with widespread popular acclaim. 'Seditious libel' was such an expansion and it did have its day, particularly in the English Court of Star Chamber. But the First Amendment repudiated seditious libel for this country. And one need only glance through the parliamentary discussion of Fox's Libel Law passed in England in 1792, to sense the bad odor of criminal libel in that country even when confined to charges against individuals only.
40
The Court's reliance on Chaplinsky v. State of New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 770, 86 L.Ed. 1031, is also misplaced. New Hampshire had a state law making it an offense to direct insulting words at an individual on a public street. Chaplinsky had violated that law by calling a man vile names 'face-to-face'. We pointed out in that context that the use of such 'fighting' words was not an essential part of exposition of ideas. Whether the words used in their context here are 'fighting' words in the same sense is doubtful, but whether so or not they are not addressed to or about individuals. Moreover, the leaflet used here was also the means adopted by an assembled group to enlist interest in their efforts to have legislation enacted. And the fighting words were but a part of arguments on questions of wide public interest and importance. Freedom of petition, assembly, speech and press could be greatly abridged by a practice of meticulously scrutinizing every editorial, speech, sermon or other printed matter to extract two or three naughty words on which to hang charges of 'group libel.' The Chaplinsky case makes no such broad inroads on First Amendment freedoms. Nothing Mr. Justice Murphy wrote for the Court in that case or in any other case justifies any such inference.
41
Unless I misread history the majority is giving libel a more expansive scope and more respectable status than it was ever accorded even in the Star Chamber. For here it is held to be punishable to give publicity to any picture, moving picture, play, drama or sketch, or any printed matter which a judge may find unduly offensive to any race, color, creed or religion. In other words, in arguing for or against the enactment of laws that may differently affect huge groups, it is now very dangerous indeed to say something critical of one of the groups. And any 'person, firm or corporation' can be tried for this crime. 'Person, firm or corporation' certainly includes a book publisher, newspaper, radio or television station, candidate or even a preacher.
42
It is easy enough to say that none of this latter group have been proceeded against under the Illinois Act. And they have not yet. But emotions bubble and tempers flare in racial and religious controversies, the kind here involved. It would not be easy for any court, in good conscience, to narrow this Act so as to exclude from it any of those I have mentioned. Furthermore, persons tried under the Act could not even get a jury trial except as to the bare fact of publication. Here, the court simply charged the jury that Beauharnais was guilty if he had caused distribution of the leaflet. Such trial by judge rather than by jury was outlawed in England in 1792 by Fox's Libel Law.
43
This Act sets up a system of state censorship which is at war with the kind of free government envisioned by those who forced adoption of our Bill of Rights. The motives behind the state law may have been to do good. But the same can be said about most laws making opinions punishable as crimes. History indicates that urges to do good have led to the burning of books and even to the burning of 'witches.'
44
No rationalization on a purely legal level can conceal the fact that state laws like this one present a constant overhanging threat to freedom of speech, press and religion. Today Beauharnais is punished for publicly expressing strong views in favor of segregation. Ironically enough, Beauharnais, convicted of crime in Chicago, would probably be given a hero's reception in many other localities, if not in some parts of Chicago itself. Moreover, the same kind of state law that makes Beauharnais a criminal for advocating segregation in Illinois can be utilized to send people to jail in other states for advocating equality and nonsegregation. What Beauharnais said in his leaflet is mild compared with usual arguments on both sides of racial controversies.
45
We are told that freedom of petition and discussion are in no danger 'while this Court sits.' This case raises considerable doubt. Since those who peacefully petition for changes in the law are not to be protected 'while this Court sits,' who is? I do not agree that the Constitution leaves freedom of petition, assembly, speech, press or worship at the mercy of a case-by-case, day-by-day majority of this Court. I had supposed that our people could rely for their freedom on the Constitution's commands, rather than on the grace of this Court on an individual case basis. To say that a legislative body can, with this Court's approval, make it a crime to petition for and publicly discuss proposed legislation seems as farfetched to me as it would be to say that a valid law could be enacted to punish a candidate for President for telling the people his views. I think the First Amendment, with the Fourteenth, 'absolutely' forbids such laws without any 'ifs' or 'buts' or 'whereases.' Whatever the danger, if any, in such public discussions, it is a danger the Founders deemed outweighed by the danger incident to the stifling of thought and speech. The Court does not act on this view of the Founders. It calculates what it deems to be the danger of public discussion, holds the scales are tipped on the side of state suppression, and upholds state censorship. This method of decision offers little protection to First Amendment liberties 'while this Court sits.'
46
If there be minority groups who hail this holding as their victory, they might consider the possible relevancy of this ancient remark:
47
'Another such victory and I am undone.'
APPENDIX.
PEOPLES EXHIBIT 3
48
Mr. Justice REED, with whom Mr. Justice DOUGLAS joins, dissenting.
49
The Fourteenth Amendment of our Constitution forbids that any person be deprived by a state of liberty or property without due process of law. This Illinois conviction subjects petitioner to a fine of $200. The petitioner challenges the validity of the sentence on the ground that his conviction under § 224a, Division 1, of the Illinois Criminal Code1 violates substantive due process. The petition for certiorari phrases the issue thus: 'Is the Illinois statute * * * as construed * * * or applied * * * invalid * * * because it infringes upon the constitutional guarantee of free speech, press and of assemblage as guaranteed' by the Fourteenth Amendment?
50
The Supreme Court of Illinois upheld the conviction of petitioner under an information which charged:
51
'that defendant on January 7, 1950, at the City of Chicago, did unlawfully publish, present and exhibit in public places, lithographs, which publications portrayed depravity, criminality, unchastity or lack of virtue of citizens of Negro race and color and which exposes citizens of Illinois of the Negro race and color to contempt, derision, or obloquy, which more fully appears in Exhibit A, which is attached hereto and made a part thereof.'2
52
The evidence was sufficient to justify the jury in finding that Beauharnais caused the lithograph referred to in the information to be published and distributed in public places. The jury did so find under certain general instructions as to the proper attitude of jurors but essentially and specifically under the following instruction:
53
'(1) The Court instructs the jury that if you find from the evidence that the defendant, Joseph Beauharnais, did on or about January 7, 1950 manufacture, sell, or offer for sale, advertise or publish, present or exhibit in any public place the lithograph, which was allowed in evidence in this case as Peoples Exhibit Number 3, then you are to find the defendant guilty and fine him not less than $50.00 nor more than $200.00.'
54
Thus, the judge did not leave to the jury but decided himself, doubtless as a matter of law, that the publication of the lithograph violated the statute. No complaint was made of this state method of trial.
55
At trial, petitioner filed a motion to quash the information and objected to the above specific instruction. He also moved for a peremptory instruction of 'not guilty' and for judgment notwithstanding the verdict. All these contentions were overruled by the trial court, and although the record does not show a precisely pleaded objection to the conviction on the ground that § 224a is unconstitutional, nonetheless the Supreme Court of Illinois treated petitioner's contention that the statute was too vague and by virtue of that fact was so broad that it abridged free speech in violation of the Fourteenth Amendment.3 The petition for certiorari brings these questions here.
56
In carrying out its obligation to conform state legal administration to the 'fundamental principles of liberty and justice' imposed on the states by the Fourteenth Amendment,4 this Court has steadily affirmed that the general principle against abridgment of free speech, protected by the First Amendment, is included in the command of the Fourteenth.5 So important to a constitutional democracy is the right of discussion that any challenge to legislative abridgment of those privileges of a free people calls for careful judicial appraisal.6 It is when speech becomes an incitement to crime that the right freely to exhort may be abridged. American Communications Ass'n., C.I.O. v. Douds, 339 U.S. 382, 395, 70 S.Ct. 674, 682, 94 L.Ed. 925; Herndon v. Lowry, 301 U.S. 242, 255, 57 S.Ct. 732, 738, 81 L.Ed. 1066.
57
When a state conviction is challenged here on the ground that free speech has been abridged, this Court must first decide whether the portion of the statute upon which the charge is based is so broad 'as to permit within the scope of its language the punishment of incidents fairly within the protection of the guarantee of free speech'. Winters v. People of State of New York, 333 U.S. 507, 509, 68 S.Ct. 665, 667, 92 L.Ed. 840. In the Winters case we set aside the conviction because the indefinite character of the statutory language, as construed by the Court of Appeals of New York, was so broad that protected speech was prohibited. This Court reversed, even though it assumed that Winters' conduct could constitutionally be punished by a statute expressing its prohibitions in reasonably narrow and definite form.7
58
This requirement means that when the verdict and judgment flow, as here, from the information as a whole, each and every portion of the statute upon which the information was drawn must be constitutional. In Stromberg v. People of State of California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117, Stromberg had been convicted in the California courts for violating a statute of that state forbidding the display of a red flag.8 On appeal, this Court did not consider whether Stromberg's conduct, as shown by the record, was protected by the Constitution. Instead, despite the fact that the second and third clauses of the California statute were unquestionably valid under the Federal Constitution, this Court reversed the state court because its conviction of Stromberg might have been based upon the first clause, holding that 'if any of the clauses in question is invalid under the Federal Constitution, the conviction cannot be upheld.'9 The first clause, forbidding a display of a red flag as a symbol of opposition to organized government, was deemed invalid because it was so broad that it permitted 'punishment of the fair use of (the) opportunity (for free political discussion, and was therefore) repugnant to the guaranty of liberty contained in the Fourteenth Amendment.' Id., 283 U.S. at page 369, 51 S.Ct. at page 536.
59
The judgment in this present case followed from a determination of judge and jury that petitioner's publication of the lithograph violated the statute. From the general verdict of guilty, nothing appears to show what particular words of the statute the Illinois courts determined the lithograph offended. This conviction must stand or fall upon a determination whether all definitions of the acts proscribed by the statute and charged in the information may be banned under the principles of the First Amendment, for, as the foregoing discussion shows, it is impossible to tell upon what phrase of the statute petitioner's conviction was based. Our examination can begin and end with the inquiry as to what meaning lies in the act's declaration, as charged in the information, that it is unlawful to portray in a lithograph a 'lack of virtue of a class of citizens * * * which * * * exposes (them to) derision, or obloquy.'
60
The majority opinion asserts that Illinois has given sufficiently clear and narrow meaning to the words 'virtue,' 'derision' and 'obloquy' by characterizing § 224a as 'a form of criminal libel law.' But the mere description of this statute as a criminal libel law does not clarify the meaning of these vague words in the statute. To say that the mere presence of the word 'virtue' in the individual libel statute10 makes its meaning clear in the group libel statute is a non sequitur. No case is cited which defines and limits the meaning of these words. Reliance is also placed by the Court upon Illinois' unfortunate experience with clashes between races. How that experience gives content to the vague words is not explained. The opinion further relies upon 'the clarifying construction and fixed usage which govern the meaning of the enactment before us'. (Emphasis added.) No opinions containing such clarification are cited. In addition to the case before us, we find only two reported adjudications on § 224a in the Illinois courts.11 Without caviling that one of these cases is so recent that it follows the instant case in the reports, certainly neither of them contains any words which give that 'clarifying construction' claimed for Illinois law.
61
The majority certainly do not supply that construction by intimating that the publications prohibited by § 224a are only those 'liable to cause violence and disorder'. Moreover, that phrase was used by the Illinois court, not to limit the prohibition of § 224a, but to describe the lithograph published by Beauharnais. See 408 Ill. at page 517, 97 N.E.2d at page 346. The quoted language does not limit the statutory words 'virtue,' 'derision' or 'obloquy.'12
62
The Court speaks at length of the constitutional power of a state to pass group libel laws to protect the public peace. This dissent assumes that power. What is under discussion is whether the conviction of Beauharnais on a general charge of violation of the statute can stand when the statute contains without statutory or judicial definition words of such ambiguous meaning and uncertain connotation as 'virtue,' 'derision,' or 'obloquy.' The Court does not attempt to speak specifically as to that contention.
63
The importance of a definite ruling on that point is manifest. Racial, religious, and political biases and prejudices lead to charge and countercharge, acrimony and bitterness. If words are to be punished criminally, the Constitution at least requires that only words or expressions or statements that can be reasonably well defined, or that have through long usage an accepted meaning, shall furnish a basis for conviction.13
64
These words—'virtue,' 'derision,' and 'obloquy'—have neither general nor special meanings well enough known to apprise those within their reach as to limitations on speech. Compare Connally v. General Construction Co., 269 U.S. 385, 391—392, 46 S.Ct. 126, 127—128, 70 L.Ed. 322. Philosophers and poets, thinkers of high and low degree from every age and race have sought to expound the meaning of virtue, but each teaches his own conception of the moral excellence that satisfies standards of good conduct. Are the tests of the Puritan or the Cavalier to be applied, those of the city or the farm, the Christian or non-Christian, the old or the young? Does the Bill of Rights permit Illinois to forbid any reflection on the virtue of racial or religious classes which a jury or a judge may think exposes them to derision or obloquy, words themselves of quite uncertain meaning as used in the statute? I think not. A general and equal enforcement of this law would restrain the mildest expressions of opinion in all those areas where 'virtue' may be thought to have a role. Since this judgment may rest upon these vague and undefined words, which permit within their scope the punishment of incidents secured by the guarantee of free speech, the conviction should be reversed.
65
Mr. Justice DOUGLAS, dissenting.
66
Hitler and his Nazis showed how evil a conspiracy could be which was aimed at destroying a race by exposing it to contempt, derision, and obloquy. I would be willing to concede that such conduct directed at a race or group in this country could be made an indictable offense. For such a project would be more than the exercise of free speech. Like picketing, it would be free speech plus.
67
I would also be willing to concede that even without the element of conspiracy there might be times and occasions when the legislative or executive branch might call a halt to inflammatory talk, such as the shouting of 'fire' in a school or a theatre.
68
My view is that if in any case other public interests are to override the plain command of the First Amendment, the peril of speech must be clear and present, leaving no room for argument, raising no doubts as to the necessity of curbing speech in order to prevent disaster.
69
The First Amendment is conched in absolute terms—freedom of speech shall not be abridged. Speech has therefore a preferred position1 as contrasted to some other civil rights. For example, privacy, equally sacred to some, is protected by the Fourth Amendment only against unreasonable searches and seizures. There is room for regulation of the ways and means of invading privacy. No such leeway is granted the invasion of the right of free speech guaranteed by the First Amendment. Until recent years that had been the course and direction of constitutional law. Yet recently the Court in this and in other cases2 has engrafted the right of regulation onto the First Amendment by placing in the hands of the legislative branch the right to regulate 'within reasonable limits' the right of free speech. This to me is an ominous and alarming trend. The free trade in ideas which the Framers of the Constitution visualized disappears. In its place there is substituted a new orthodoxy—an orthodoxy that changes with the whims of the age or the day, an orthodoxy which the majority by solemn judgment proclaims to be essential to the safety, welfare, security, morality, or health of society. Free speech in the constitutional sense disappears. Limits are drawn—limits dictated by expediency, political opinion, prejudices or some other desideratum of legislative action.
70
An historic aspect of the issue of judicial supremacy was the extent to which legislative judgment would be supreme in the field of social legislation. The vague contours of the Due Process Clause were used to strike down laws deemed by the Court to be unwise and improvident.3 That trend has been reversed. In matters relating to business, finance, industrial and labor conditions, health and the public welfare, great leeway is now granted the legislature,4 for there is no guarantee in the Constitution that the status quo will be preserved against regulation by government. Freedom of speech, however, rests on a different constitutional basis. The First Amendment says that freedom of speech, freedom of press, and the free exercise of religion shall not be abridged. That is a negation of power on the part of each and every department of government. Free speech, free press, free exercise of religion are placed separate and apart; they are above and beyond the police power; they are not subject to regulation in the manner of factories, slums, apartment houses, production of oil, and the like.
71
The Court in this and in other cases places speech under an expanding legislative control. Today a white man stands convicted for protesting in unseemly language against our decisions invalidating restrictive covenants. Tomorrow a negro will be haliled before a court for denouncing lynch law in heated terms. Farm laborers in the west who compete with field hands drifting up from Mexico; whites who feel the pressure of orientals; a minority which finds employment going to members of the dominant religious group—all of these are caught in the mesh of today's decision. Debate and argument even in the courtroom are not always calm and dispassionate. Emotions sway speakers and audiences alike. Intemperate speech is a distinctive characteristic of man. Hot-heads blow off and release destructive energy in the process. They shout and rave, exaggerating weaknesses, magnifying error, viewing with alarm. So it has been from the beginning; and so it will be throughout time. The Framers of the Constitution knew human nature as well as we do. They too had lived in dangerous days; they too knew the suffocating influence of orthodoxy and standardized thought. They weighed the compulsions for retrained speech and thought against the abuses of liberty. They chose liberty. That should be our choice today no matter how distasteful to us the pamphlet of Beauharnais may be. It is true that this is only one decision which may later be distinguished or confined to narrow limits. But it represents a philosophy at war with the First Amendment—a constitutional interpretation which puts free speech under the legislative thumb. It reflects an influence moving ever deeper into our society. It is notice to the legislatures that they have the power to control unpopular blocs. It is a warning to every minority that when the Constitution guarantees free speech it does not mean what it says.
72
Mr. Justice JACKSON, dissenting.
73
An Illinois Act, construed by its Supreme Court to be a 'group libel' statute, has been used to punish criminally the author and distributor of an obnoxious leaflet attacking the Negro race. He answers that, as applied, the Act denies a liberty secured to him by the Due Process Clause of the Fourteenth Amendment. What is the liberty which that clause underwrites?
74
The spectrum of views expressed by my seniors shows that disagreement as to the scope and effect of this Amendment underlies this, as it has many another, division of the Court. All agree that the Fourteenth Amendment does confine the power of the State to make printed words criminal. Whence we are to derive metes and bounds of the state power is a subject to the confusion of which, I regret to say, I have contributed—comforted in the acknowledgment, however, by recalling that this Amendment is so enigmatic and abstruse that judges more experienced than I have had to reverse themselves as to its effect on state power.
75
The assumption of other dissents is that the 'liberty' which the Due Process Clause of the Fourteenth Amendment protects against denial by the States is the literal and identical 'freedom of speech, or of the press' which the First Amendment forbids only Congress to abridge. The history of criminal libel in America convinces me that the Fourteenth Amendment did not 'incorporate' the First, that the powers of Congress and of the States over this subject are not of the same dimensions, and that because Congress probably could not enact this law it does not follow that the States may not.
I.
76
As a limitation upon power to punish written or spoken words, Fourteenth Amendment 'liberty' in its context of state powers and functions has meant and should mean something quite different from 'freedom' in its context of federal powers and functions.1
77
This Court has never sustained a federal criminal libel Act. One section of the Sedition Act of 1798 was close to being a 'group libel' Act.2 While there were convictions under it, no attack on its validity reached this Court. I think today's better opinion regards the enactment as a breach of the First Amendment and certainly Mr. Justice Holmes and Mr. Justice Brandeis thought so.3 But even in the absence of judicial condemnation, the political disapproval of the Sedition Act was so emphatic and sustained that federal prosecution of the press ceased for a century. It was resumed with indictment of The Indianapolis News and The New York World for disclosures and criticisms of the Panama Canal acquisition. Both were indicted in the District of Columbia and under the District Code, on the ground that some copies circulated there. That prosecution collapsed when Judge Anderson refused the Government's application to remove the Indiana defendants to the District of Columbia for trial.4
78
The World, circulated at West Point, was indicted in New York on the theory that an 1825 Act to protect fortifications assimilated the New York State law punishing criminal libel. That venture likewise came to grief when Judge Hough rejected that construction of the federal statute and was upheld by this Court. United States v. Press Publishing Co., 1911, 219 U.S. 1, 31 S.Ct. 212, 55 L.Ed. 65. While there has been a demand from official sources for a resumption of criminal libel prosecution, it has not been acceded to.5 Thus, while the jeopardy of such federal prosecutions has never been removed by any decision of this Court, I should think the validity of a federal enactment such as this would be extremely doubtful, to say the least.
79
The effect of the First Amendment on congressional power to make seditious utterance criminal did receive consideration in the aftermath of the First World War. In such a case, Mr. Justice Holmes formulated for the Court as 'the question in every case' the 'clear and present danger' test. Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470. He and Mr. Justice Brandeis adhered to it as a 'rule of reason,' dissenting when they thought the rest of the Court apostate. Abrams v. United States, 250 U.S. 616, 627, 628, 40 S.Ct. 17, 21, 63 L.Ed. 1173; Schaefer v. United States, 251 U.S. 466, 482, 40 S.Ct. 259, 264, 64 L.Ed. 360.
80
Only after research and deliberation in these cases had sharpened their perception did these Justices face the free-speech issue as to state power which Mr. Justice Holmes first adverted to, but left undecided, in Patterson v. State of Colorado ex rel. Attorney General, 205 U.S. 454, 27 S.Ct. 556, 51 L.Ed. 879. In 1922 they joined the Court's first decision on the subject, which declared that '* * * neither the Fourteenth Amendment nor any other provision of the Constitution of the United States imposes upon the states any restrictions about 'freedom of speech' * * *.' Prudential Insurance Co. of America v. Cheek, 259 U.S. 530, 543, 42 S.Ct. 516, 522, 66 L.Ed. 1044.
81
However, these two Justices, who made the only original contribution to legal thought on the difficult problems bound up in these Amendments, soon reversed and took the view that the Fourteenth Amendment did impose some restrictions upon the States. But it was not premised upon the First Amendment nor upon any theory that it was incorporated in the Fourteenth. What they wrote, with care and circumspection, I accept as the wise and historically correct view of the Fourteenth Amendment. It was:
82
'The general principle of free speech, it seems to me, must be taken to be included in the Fourteenth Amendment, in view of the scope that has been given to the word 'liberty' as there used, although perhaps it may be accepted with a somewhat larger latitude of interpretation than is allowed to Congress by the sweeping language that governs or ought to govern the laws of the United States.' (Emphasis supplied.) Gitlow v. People of State of New York, 268 U.S. 652, 672, 45 S.Ct. 625, 632, 69 L.Ed. 1138.
83
That reasoning was echoed so recently as 1937, when the Court explicitly rejected the theory of incorporation and, through Mr. Justice Cardozo, announced a view, unanimous except for Mr. Justice Butler, that the Fourteenth did not deflect against the States the literal language of amendments designed to circumscribe federal power but qualified state power only by such general restraints as are essential to 'the concept of ordered liberty'. Palko v. State of Connecticut, 302 U.S. 319, 324—325, 58 S.Ct. 149, 152, 82 L.Ed. 288.
84
It is clear that these do not proscribe state criminal libel Acts. Justices Holmes and Brandeis in 1931 joined Chief Justice Hughes, who spoke for the Court, in striking down a state Act because it authorized restraint by injunction previous to publication. He said: 'For whatever wrong the appellant has committed or may commit, by his publications, the state appropriately affords both public and private redress by its libel laws.' This was amplified: 'But it is recognized that punishment for the abuse of the liberty accorded to the press is essential to the protection of the public, and that the common-law rules that subject the libeler to responsibility for the public offense, as well as for the private injury, are not abolished by the protection extended in our Constitutions. * * * The law of criminal libel rests upon that secure foundation.' Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 715, 51 S.Ct. 625, 631, 75 L.Ed. 1357.
85
So recently as 1942, a unanimous Court, speaking of state power, said that punishment of libelous words 'which by their very utterance inflict injury or tend to incite an immediate breach of the peace' has never been thought to raise any constitutional problem. Chaplinsky v. State of New Hampshire, 315 U.S. 568, 571 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031.
86
More than forty State Constitutions, while extending broad protections to speech and press, reserve a responsibility for their abuse and implicitly or explicitly recognize validity of criminal libel laws.6 We are justified in assuming that the men who sponsored the Fourteenth Amendment in Congress, and those who ratified it in the State Legislatures, knew of such provisions then in many of their State Constitutions. Certainly they were not consciously canceling them or calling them into question, or we would have some evidence of it. Congresses, during the period while this Amendment was being considered or was but freshly adopted, approved Constitutions of 'Reconstructed' States that expressly mentioned state libel laws,7 and also approved similar Constitutions for States erected out of the federal domain.8
87
Certainly this tolerance of state libel laws by the very authors and partisans of the Fourteenth Amendment shows either that they were not intending to incorporate the First Amendment or that they believed it would not prevent federal libel laws. Adoption of the incorporation theory today would lead to the dilemma of either confining the States as closely as the Congress or giving the Federal Government the latitude appropriate to state governments. The treatment of libel powers corroborates the conclusions against the incorporationist theory reached by the most comprehensive and objective studies of the origin and adoption of the Fourteenth Amendment.9
88
The inappropriateness of a single standard for restricting State and Nation is indicated by the disparity between their functions and duties in relation to those freedoms. Criminality of defamation is predicated upon power either to protect the private right to enjoy integrity of reputation or the public right to tranquility. Neither of these are objects of federal cognizance except when necessary to the accomplishment of some delegated power, such as protection of interstate commerce. When the Federal Government puts liberty of press in one scale, it has a very limited duty to personal reputation or local tranquillity to weigh against it in the other. But state action affecting speech or press can and should be weighed against and reconciled with these conflicting social interests.
89
For these reasons I should not, unless clearly required, confirm to the Federal Government such latitude as I think a State reasonably may require for orderly government of its manifold concerns. The converse of the proposition is that I would not limit the power of the State with the severity appropriately prescribed for federal power.
90
As the principle by which to judge the constitutionality of this statute, I accept the dissent in Gitlow and the decision in Palko.
II.
91
What restraints upon state power to punish criminal libel are implied by the 'concept of ordered liberty'? Experience by Anglo-Saxon peoples with defamation and laws to punish it extends over centuries and the statute and case books exhibit its teachings. If one can claim to announce the judgment of legal history on any subject, it is that criminal libel laws are consistent with the concept of ordered liberty only when applied with safeguards evolved to prevent their invasion of freedom of expression.
92
Oppressive application of the English libel laws was partially checked when Fox's Libel Act of 1972 allowed the jury to determine whether an accused publication was libelous in character and more completely when Lord Campbell's Libel Act of 1943 allowed truth to be proved as a defense.
93
American experience teaches similar lessons. The leading state case is People v. Croswell, 3 Johns.Cas. 337. Since, as the opinion of this Court now points out, the Jeffersonian's objection to federal sedition prosecutions was largely fear of federal usurpation of state powers over the subject, it was consistent for them to prosecute libels under state law. Croswell, publisher of the aptly named Wasp, was indicted for libeling Thomas Jefferson by representing him as unworthy of the confidence, respect, and attachment of the people. The trial judge pronounced his statements libelous as a matter of law and allowed the jury to decide no question except whether the accused had published them. The defendant was convicted and on his appeal, argued by Alexander Hamilton, the appellate court divided equally. Justice Kent, however, filed a characteristically learned and vigorous opinion that the trial court must submit the libelous character of the article and libelous intent of its printer to decision by the jury, which was entitled to determine both law and fact. The public response was such that an early session of the Legislature substantially enacted Kent's contentions. Inasmuch as no judgment had been entered upon the earlier equal division, the court at its August 1805 term, 'in consequence of this declaratory statute,' unanimously awarded a new trial.10
94
The New York Constitution at that time contained no free speech provision but the case led to a provision included in the Constitution of 1821 which both followed Fox's Libel Act and anticipated Lord Campbell's Act and has remained in the several Constitutions of that State since:
95
'Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty to speech, or of the press. In all prosecutions or indictments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libellous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact.'11
96
It would not be an exaggeration to say that, basically, this provision of the New York Constitution states the common sense of American criminal libel law. Twenty-four States of the Union whose Constitutions were framed later substantially adopted it.12 Twelve State provide that press and speech shall be free but there shall be responsibility for the abuse.13 Five others provide substantially the same but add that truth may be given in evidence in a libel prosecution.14 Only five States, whose Constitutions were framed earlier, were content with the generality about the free press similar to that of Massachusetts.15 But all of these States, apart from constitutional provision, have by decisional law recognized the validity of criminal libel prosecutions.16
97
Because of these safeguards, state libel laws have presented no threat to a free press comparable to that from federal sources and have not proved inconsistent with fundamental liberties. Attacks on the press by States which were frustrated by this Court in Near v. State of Minnesota ex rel. Olson, supra, and Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660, were not by libel laws. For near a century and a half this Court's decisions left state criminal libel prosecutions entirely free of federal constitutional limitations. It is a matter of notoriety that the press often has provoked hostility, that editors have been mobbed and horsewhipped, but criminal libel prosecutions have not been frequent and, as safeguarded by state law, they have been so innocuous that chronicles of American journalism give them only passing mention.17
98
This Court, by construction of the Fourteenth Amendment, has imposed but one addition to the safeguards voluntarily taken upon the States by themselves. It is that where expression, oral or printed, is punished, although it has not actually caused injuries or disorders but is thought to have a tendency to do so, the likelihood of such consequence must not be remote or speculative. That is the 'clear and present danger' test which Mr. Justice Holmes and Mr. Justice Brandeis, eventually with support of the Court, thought implied in both the First18 and Fourteenth Amendments,19 although the former was not bodily bound up in the latter. Any superficial inconsistency between applying the same standard but permitting a wider range of action to the States is resolved upon reference to the latter part of the statement of the formula: clear and present danger of those substantive evils which the legislature has a right to prevent. The evils at which Congress may aim, and in so doing come into conflict with free speech, will be relatively few since it is a government of limited powers. Because the States may reach more evils, they will have wider range to punish speech which presents clear and present danger of bringing about those evils.
99
In few subjects so much as libel does local law, in spite of varying historical influences, afford a consensus of American legal opinion as to what is reasonable and essential to the concept of ordered government. The boundaries are roughly outlined, to be sure, and cannot be stated or applied with mathematical precision, but those widely accepted state constitutional provisions on which is superimposed the 'clear and present danger' test for 'tendency' cases seem to be our best guide.
100
I agree with the Court that a State has power to bring classes 'of any race, color, creed, or religion' within the protection of its libel laws, if indeed traditional forms do not already accomplish it.20 But I am equally clear that in doing so it is essential to our concept of ordered liberty that the State also protect the accused by those safeguards the necessity for which is verified by legal history.
III.
101
The Illinois statute, as applied in this case, seems to me to have dispensed with accepted safeguards for the accused. Trial of this case ominously parallels the trial of People v. Croswell, supra, in that the Illinois court here instructed the jury, in substance, that if it found that defendant published this leaflet he must be found guilty of criminal libel.
102
Rulings of the trial court precluded the effort to justify statements of fact by proving their truth. The majority opinion concedes the unvarying recognition by the States that truth plus good motives is a defense in a prosecution for criminal libel. But here the trial court repeatedly refused defendant's offer of proof as to the truth of the matter published. Where an offer to prove the dominant element of a defense is rejected as immaterial, we can hardly refuse to consider defendant's constitutional question because he did not go through the useless ceremony of offering proof of a subsidiary element of the defense. If the court would not let him try to prove he spoke truth, how could he show that the spoke truth for good ends? Furthermore, the record indicates that defendant was asked to state what he had meant by the use of certain phrases, and the reason for forming the White Circle League—statements which apparently bore on the issue of motive and ends. But the trial court sustained a sweeping objection 'to this whole line of examination.' The Supreme Court of Illinois noted the offer of proof of truth and its exclusion, and apparently went on to rule as a matter of law that the statement was not published for justifiable ends. At all events, it is clear that the defense was ruled out as matter of law and defendant was never allowed to present it for decision by either court or jury upon the facts, a practice which I think is contrary to the overwhelming verdict of Anglo-Saxon history and practice. I do not intimate that this defendant stood even a remote chance of justifying what impresses me, as it did the trial court, as reckless and vicious libel. But the point is that his evidence, proffered for that purpose, was excluded instead of being received and evaluated. Society has an interest in preserving truth as a justification, however obnoxious the effort may be. A publication which diffuses its attack over unnamed and impersonal multitudes is likely to be harder to justify than one which concentrates its attack on named individuals, but the burden may properly be cast on an accused and punishment follow failure to carry it.
103
The same may be said of the right to comment upon matters of public interest insofar as the statement includes matters of opinion, a point, however, which the defense may have inadequately raised. When any naturally cohesive or artificially organized group possesses a racial or sectarian solidarity which is or may be exploited to influence public affairs, that group becomes a legitimate subject for public comment. Of course, one can only deplore the habitual intemperance and bitter disparagement which characterizes most such comment. While I support the right of a State to place decent bounds upon it, I am not ready to hold that group purposes, characteristics and histories are to be immunized from comment or may be discussed only at the risk of prosecution free of all usual safeguards.
104
Another defense almost universally recognized, which it seems the jury were not allowed to consider here, is that of privilege. Petition for redress of grievances is specifically privileged by many State Constitutions. I do not think we should hold this whole document to be constitutionally privileged just because, in part, it stimulates a petition for redress of grievances. A court or jury could have found that its primary purpose was not to petition but to appeal for members and contributions to the White Circle League. If some part of it were privileged, that, so it has been held, does not extend constitutional protection to unprivileged matter. Cf. Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262. But the question of privilege seems not to have been specifically passed on by the court and certainly was not submitted for the jury's consideration.
105
In this case, neither the court nor jury found or were required to find any injury to any person, or group, or to the public peace, nor to find any probability, let alone any clear and present danger, of injury to any of these. Even though no individuals were named or described as targets of this pamphlet, if it resulted in a riot or caused injury to any individual Negro, such as being refused living quarters in a particular section, house or apartment, or being refused employment, certainly there would be no constitutional obstacle to imposing civil or criminal liability for actual results. But in this case no actual violence and no specific injury was charged or proved.
106
The leaflet was simply held punishable as criminal libel per se irrespective of its actual or probable consequences. No charge of conspiracy complicates this case. The words themselves do not advocate the commission of any crime. The conviction rests on judicial attribution of a likelihood of evil results. The trial court, however, refused to charge the jury that it must find some 'clear and present danger,' and the Supreme Court of Illinois sustained conviction because, in its opinion, the words used had a tendency to cause a breach of the peace.
107
Referring to the clear and present danger doctrine in Dennis v. United States, 341 U.S. 494, 568, 71 S.Ct. 857, 897, 95 L.Ed. 1137, I said:
108
'I would save it, unmodified, for application as a 'rule of reason' in the kind of case for which it was devised. When the issue is criminality of a hotheaded speech on a street corner, or circulation of a few incendiary pamphlets, or parading by some zealots behind a red flag, or refusal of a handful of school children to salute our flag, it is not beyond the capacity of the judicial process to gather, comprehend, and weigh the necessary materials for decision whether it is a clear and present danger of substantive evil or a harmless letting off of steam. It is not a prophecy, for the danger in such cases has matured by the time of trial or it was never present. The test applies and has meaning where a conviction is sought to be based on a speech or writing which does not directly or explicitly advocate a crime but to which such tendency is sought to be attributed by construction or by implication from external circumstances. The formula in such cases favors freedoms that are vital to our society, and, even if sometimes applied too generously, the consequences cannot be grave. * * *'
109
Not the least of the virtues of this formula in such tendency cases is that it compels the prosecution to make up its mind what particular evil it sought or is seeking to prevent. It must relate its interference with speech or press to some identifiable evil to be prevented. Words on their own account are not to be punished in such cases but are reachable only as the root of punishable evils.
110
Punishment of printed words, based on their tendency either to cause breach of the peace or injury to persons or groups, in my opinion, is justifiable only if the prosecution survives the 'clear and present danger' test. It is the most just and workable standard yet evolved for determining criminality of words whose injurious or inciting tendencies are not demonstrated by the event but are ascribed to them on the basis or probabilities.
111
Its application is important in this case because it takes account of the particular form, time, place, and manner of communication in question. 'The moving picture screen, the radio, the newspaper, the handbill, the sound truck and the street corner orator have differing natures, values, abuses and dangers. Each, in my view, is a law unto itself * * *.' Kovacs v. Cooper, 336 U.S. 77, 97, 69 S.Ct. 448, 459, 93 L.Ed. 513. It would consider whether a leaflet is so emotionally exciting to immediate action as the spoken word, especially the incendiary street or public speech. Terminiello v. City of Chicago, 337 U.S. 1, 13, 69 S.Ct. 894, 899, 93 L.Ed. 1131; Kunz v. People of State of New York, 340 U.S. 290, 295, 71 S.Ct. 312, 315, 95 L.Ed. 267. It will inquire whether this publication was obviously so foul and extreme as to defeat its own ends, whether its appeals for money—which has a cooling effect on many persons would not negative its inflammatory effect, whether it would not impress the passer-by as the work of an irresponsible who needed mental examination.
112
One of the merits of the clear and present danger test is that the triers of fact would take into account the realities of race relations and any smouldering fires to be fanned into holocausts. Such consideration might well warrant a conviction here when it would not in another and different environment.
113
Group libel statutes represent a commendable desire to reduce sinister abuses of our freedoms of expression—abuses which I have had occasion to learn can tear apart a society, brutalize its dominant elements, and persecute, even to extermination, its minorities. While laws or prosecutions might not alleviate racial or sectarian hatreds and may even invest scoundrels with a specious martyrdom, I should be loath to foreclose the States from a considerable latitude of experimentation in this field. Such efforts, if properly applied, do not justify frenetic forebodings of crushed liberty. But these acts present most difficult policy and technical problems, as thoughtful writers who have canvassed the problem more comprehensively than is appropriate in a judicial opinion have well pointed out.21
114
No group interest in any particular prosecution should forget that the shoe may be on the other foot in some prosecution tomorrow. In these, as in other matters, our guiding spirit should be that each freedom is balanced with a responsibility, and every power of the State must be checked with safeguards. Such is the spirit of our American law of criminal libel, which concedes the power to the State, but only as a power restrained by recognition of individual rights. I cannot escape the conclusion that as the Act has been applied in this case it lost sight of that rights.
1
408 Ill. 512, 518, 97 N.E.2d 343, 346, 347. Illinois law requires that for the defense to prevail, the truth of all facts in the utterance must be shown together with good motive for publication. People v. Strauch, 247 Ill. 220, 93 N.E. 126; People v. Fuller, 238 Ill. 116, 87 N.E. 336; cf. Ogren v. Rockford Star Printing Co., 288 Ill. 405, 123 N.E. 587.
2
See, e.g., State v. Sterman, 199 Iowa 569, 202 N.W. 222; State v. Howard, 169 N.C. 312, 313, 84 S.E. 807, 808; cf. Ogren v. Rockford Star Printing Co., supra.
3
See, e.g., People v. Spielman, 318 Ill. 482, 489, 149 N.E. 466, 469; Odgers, Libel and Slander (6th ed.), 368; Kennerly v. Hennessy, 68 Fla. 138, 66 So. 729, 19 A.L.R. 1470. Some States hold, however, that injury to reputation, as in civil libel, and not tendency to breach of the peace, is the gravamen of the offense. See Tanenhaus, Group Libel, 35 Cornell L.Q. 261, 273 and n. 67.
4
For a brief account of this development see Warren, History of the American Bar, 236—239. See also correspondence between Chief Justice Cushing of Massachusetts and John Adams, published in 27 Mass.L.Q. 11—16 (Oct.1942). Jefferson explained in a letter to Abigail Adams, dated September 11, 1804, that to strike down the Alien and Sedition Act would not 'remove all restraint from the over-whelming torrent of slander which is confounding all vice and virtue, all truth and falsehood in the US. The power to do that is fully possessed by the several state legislatures.' See Dennis v. United States, 341 U.S. 494, 522, note 4, 71 S.Ct. 857, 873, 95 L.Ed. 1137. See Miller, Crisis in Freedom, 168—169, 231—232. See also provisions as to criminal libel in Edward Livingston's famous draft System of Penal Law for Louisiana, 2 Works of Edward Livingston 100—108.
5
In eight States the offense is punished as at common law, without legislative enactment. State v. Roberts, 2 Marv., Del., 450, 43 A. 252; Cole v. Commonwealth, 222 Ky. 350, 300 S.W. 907; Robinson v. State, 108 Md. 644, 71 A. 433; Commonwealth v. Canter, 269 Mass. 359, 168 N.E. 790; State v. Burnham, 9 N.H. 34; State v. Spear, 13 R.I. 324; State v. Sutton, 74 Vt. 12, 52 A. 116; State v. Payne, 87 W.Va. 102, 104 S.E. 288, 19 A.L.R. 1465. Twelve other jurisdictions make 'libel' a crime by statute, without defining the term. Ala.Code 1940, Tit. 14, § 347; Alaska Comp.Laws Ann.1949, § 65—4—28; D.C.Code 1940, § 22—2301; Fla.Stat.Ann. § 836.01; Burns' Ind.Stat.1933, § 10—3201; Miss.Code 1942, § 2268; Neb.Rev.Stat.1943, § 28—440; N.J.Stat.Ann. § 2:146—1; N.C.Gen.Stat.1943, § 14—47; Page's Ohio Gen.Code 1939, § 13383; Wis.Stat.1949, § 348.41; Wyo.Comp.Stat.1945, § 9—1601. Thus, twenty American jurisdictions punish 'libel' as defined by the case-by-case common-law development.
The remaining jurisdictions have sought to cast the common-law definition in a statutory form of words. Two formulas have been popular. Eleven jurisdictions, Illinois among them, have accepted with minor variations the following:
'A libel is a malicious defamation, expressed either by printing, or by signs or pictures, or the like, tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue or reputation or publish the natural defects of one who is alive, and thereby to expose him to public hatred, contempt, ridicule, or financial injury.' Smith-Hurd Ill.Ann.Stat.1936, c. 38, § 402. Ariz.Code Ann.1939, § 43—3501; Ark.Stat.1947, § 41—2401; Deering's Cal.Penal Code 1949, § 248; Colo.Stat.Ann.1935, c. 48, § 199; Ga.Code Ann.1936, § 26—2101; Idaho Code 1947, § 18—4801; Mont.Rev.Codes 1947, § 94—2801; Nev.Comp.Laws 1929, § 10110; P.R.Codigo Penal 1937, § 243; Utah Code Ann.1943, § 103—38—1; cf. Virgin Islands Code 1921, Tit. IV, c. 5, § 36.
The other version, again with minor variations, has found favor in twelve jurisdictions.
'A libel is a malicious defamation of a person, made public by any printing, writing, sign, picture, representation, or effigy, tending to provoke him to wrath or expose him to public hatred, contempt, or ridicule, or to deprive him of the benefits of public confidence and social intercourse; or any malicious defamation, made public as aforesaid, designed to blacken and vilify the memory of one who is dead, and tending to scandalize or provoke his surviving relatives or friends.' Iowa Code Ann. § 737.1; Kan.Gen.Stat.1949, § 21—2401; Dart's La.Crim.Code 1935, Art. 740—47, LSA—R.S. 14:47; Me.Rev.Stat.1944, c. 117, § 30; Minn.Stat.1949, § 619.51, M.S.A.; Mo.Rev.Stat.1949, § 559.410, V.A.M.S.; McKinney's N.Y.Consol.Laws c. 40, Penal Law, § 1340; N.D.Rev.Code 1943, § 12—2801; Okl.Stat.Ann. Tit. 21, § 771; Purdon's Pa.Stat.Ann. Tit. 18, § 4412; Williams' Tenn.Code 1934, §§ 11021, 11022; Remington's Wash.Rev.Stat.1932, § 2424.
The remaining nine jurisdictions have definitions of criminal libel which fall into no common pattern. See Conn.Gen.Stat.1949, § 8218; Hawaii Rev.Laws 1945, § 11450; Mich.Comp.Laws 1948, § 750 370; N.M.Stat.1941, §§ 41—2701, 41—2708; Ore.Comp.Laws 1940, § 23 437; S.C.Code 1942, § 1395; S.D.Code 1939, § 13. 3401; Vernon's Tex.Penal Stat. 1948, Arts. 1269, 1275; Va.Code 1950, § 18—133.
Our examination of the homogeneity of these statutory definitons of criminal libel might well begin and end with the words 'virtue' and 'ridicule.' Of thirty-two jurisdictions, twelve outlaw statements impeaching the 'virtue' of another; eleven of these, and fifteen more—twenty-six in all—prohibit utterances tending to bring another into 'public ridicule.'
For the common-law definition, applicable in the twenty jurisdictions first noted above, see L. Hand, J., in Grant v. Reader's Digest Ass'n, 2 Cir., 151 F.2d 733, 735, where he speaks of defining libel 'in accordance with the usual rubric, as consisting of utterances which arouse 'hatred, contempt, scorn, obloquy or shame,' and the like.' Cf. Restatement, Torts, § 559, comment (b); Odgers, Libel and Slander (6th ed.), 16—17; Newell, Slander and Libel (4th ed.), 1—2.
Even a cursory examination of these enactments and common-law pronouncements demonstrates that Illinois, in § 224a, was using a form of words which invoked the familiar common law of libel to define the prohibited utterances. The defendant and the Illinois courts, as we have seen, understood this and acted upon it.
6
In all but five States, the constitutional guarantee of free speech to every person is explicitly qualified by holding him 'responsible for the abuse of that right.' See Pennekamp v. State of Florida, 328 U.S. 331, 356, note 5, 66 S.Ct. 1029, 1042, 90 L.Ed. 1295. See Jefferson in Kentucky Resolutions of 1798 and 1799, 4 Elliot's Debates 540—541, and in an undated draft prepared, but not used, for his December 8, 1801, Message to Congress, Library of Congress Jefferson Papers, Vol. 119, Leaf 20569. In Carlson v. People of State of California, 310 U.S. 106, 112, 60 S.Ct. 746, 748, 84 L.Ed. 1104, we noted that the statute there invalidated made 'no exceptions with respect to the truthfulness and restraint of the information conveyed * * *.'
7
Compare reports of King v. Osborne in 2 Barn.K.B. 138, 166, 94 Eng.Rep. 406, 425; 2 Swans. 503, n (c), 36 Eng.Rep. 705, 717; W.Kel. 230, 25 Eng.Rep. 584 (1732). The present Attorney General of England asserted that this case obviated the need of special group libel legislation for Great Britain. See The (London) Times, March 26, 1952, p. 2, col. 4. See also Odgers, Libel and Slander (6th ed.), 369; Tanenhaus, Group Libel, 35 Cornell L.Q. 261, 267—269.
8
One of the leading cases arose in Illinois. People v. Spielman, 1925, 318 Ill. 482, 149 N.E. 466, sustaining a conviction for libel on the members of the American Legion. The authorities are collected and discussed in Tanenhaus, Group Libel, 35 Cornell L.Q. 261, 269—276.
9
See, e.g., Loewenstein, Legislative Control of Political Extremism in European Democracies, 38 Col.L.Rev. 591 and 725; Riesman, Democracy and Defamation, 42 Col.L.Rev. 727, 1085 and 1282; Public Order Act, 1936, 1 Edw. VIII and 1 Geo. VI, c. 6, and 317 H.C.Deb. 1349—1473 (5th ser. 1936); 318 H.C.Deb. 49—193, 581 710, 1659—1785, 2781—2784 (5th ser. 1936); 103 H.L.Deb. 741—773, 961—972 (5th ser. 1936).
10
See generally The Chicago Commission on Race Relations, The Negro in Chicago, 1—78, and passim (University of Chicago Press, 1922); Research Memorandum No. 5, First Annual Rep.Ill. Inter-Racial Comm'n (1944).
11
The May 28, 1917, riot in East St. Louis, Illinois, was preceded by a violently inflammatory speech to unemployed workmen by a prominent lawyer of the town. Report of the Special Committee Authorized by Congress to Investigate the East St. Louis Riots, H.R. Doc. No. 1231, 65th Cong., 2d Sess. 11; Chicago Commission on Race Relations, The Negro in Chicago, 75. And see id., at 118—122 for literature circulated by real estate associations and other groups during the series of bombings leading up to the Chicago riots of 1919. For the Commission's comments on the role of propaganda in promoting race frictions, see id., at 589, 638—639.
12
Tables in Drake and Cayton, Black Metropolis, 8, show that between 1900 and 1920 the number of foreign-born in Chicago increased by over 1/3 and the Negro population trebled. United States census figures show the following population growth for the State as a whole and selected counties:
Cook County St. Clair County
Illinois (Chicago) (East St. Louis)
Total Negro Total Negro Total Negro
1900. 4,821,550 85,078 1,838,735 31,838 86,685 3,987
1910. 5,638,591 109,049 2,405,233 46,627 119,870 8,110
1920. 6,485,280 182,274 3,053,017 115,238 136,520 10,136
1930. 7,630,654 328,972 3,982,123 246,992 157,775 15,550
1940. 7,897,241 387,446 4,063,342 249,157 166,899 21,567
1950. 8,712,176 645,989 4,508,792 521,007 205,995 34,566
For an account of these vast population movements entailing great social malad-justments, see Drake and Cayton, Black Metropolis, 8—18, 31—65; Chicago Commission on Race Relations, The Negro in Chicago, 79—105; Carl Sandburg, The Chicago Race Riots, 9 30.
13
See Walling, Race War in the North, 65 The Independent 529 (1908). This article apparently led to the founding of the National Association for the Advancement of Colored People. Ovington, How the National Association for the Advancement of Colored People Began, 8 Crisis 184 (1914). See also Chicago Commission on Race Relations, The Negro in Chicago, 67—71.
14
Report of the Special Committee Authorized by Congress to Investigate the East St. Louis Riots, H.R. Doc. No. 1231, 65th Cong., 2d Sess. See also The Massacre of East St. Louis, 14 Crisis 219 (1917).
15
Chicago, Commission on Race Relations, The Engro in Chicago 122—133.
16
The utterances here in question 'are not,' as a detached student of the problem has noted, 'the daily grist of vituperative political debate. Nor do they represent the frothy imaginings of lunatics, or the 'idle' gossip of a country town. Rather, they indicate the systematic avalanche of falsehoods which are circulated concerning the various groups, classes and races which make up the countries of the western world.' Riesman, Democracy and Defamation; Control of Group Libel, 42 Col.L.Rev. at 727. Professor Riesman continues: 'Such purposeful attacks are nothing new, of course. * * * What is new, however, is the existence of a mobile public opinion as the controlling force in politics, and the systematic manipulation of that opinion by the use of calculated falsehood and vilification.' Id., at 728.
17
See, e.g., L. Hand, J., in a symposium in The Saturday Review of Literature, Mar. 15, 1947, pp. 23—24; Report of the Committee on the Law of Defamation, Cmd. 7536, 11 (1948).
18
It deserves emphasis that there is no such attempt in this statute. The rubric 'race, color, creed or religion' which describes the type of group, libel of which is punishable, has attained too fixed a meaning to permit political groups to be brought within it. If a statute sought to outlaw libels of political parties, quite different problems not now before us would be raised. For one thing, the whole doctrine of fair comment as indispensable to the democratic political process would come into play. See People v. Fuller, supra, 238 Ill. at page 125, 87 N.E. 336 at pages 338—339; Commonwealth v. Pratt, 208 Mass. 553, 559, 95 N.E. 105, 106. Political parties, like public men, are, as it were, public property.
19
Indeed, such defenses are evidently protected by Illinois law. See Ill.Const. Art. II, § 17, guaranteeing the right of the people to apply for redress of grievances. And see People v. Fuller, 238 Ill. 116, 125, 87 N.E. 336, 338—339, on the defense of 'fair comment' in criminal libel prosecutions.
20
The present constitution, adopted in 1870, is Illinois' third. The first two preserved the defense of truth in certain types of libel prosecutions: 'In prosecutions for the publication of papers investigating the official conduct of officers, or of men acting in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence. And in all indictments for libels the jury shall have the right of determining both the law and the fact, under the direction of the court, as in other cases.' Ill.Const.1818, Art. VIII, § 23; Ill.Const.1848, Art. XIII, § 24. The combined requirement of truth and good motives and justifiable ends, available as a defense in all libel suits, was adopted with the Constitution of 1870.
21
Defendant offered to show (1) that crimes were more frequent in districts heavily populated by Negroes than in those where whites predominated; (2) three specific crimes allegedly committed by Negroes, and (3) that property values declined when Negroes moved into a neighborhood. It is doubtful whether such a showing is as extensive as the defamatory allegations in the lithograph circulated by the defendant.
22
The defense attorney put a few questions to the defendant on the witness stand which tended toward elaborating his motives in circulating the lithograph complained of. When objections to these questions were sustained, no offer of proof was made, in contrast to the rather elaborate offer which followed the refusal to permit questioning tending to show the truth of the matter. Indeed, in that offer itself, despite its considerable detail, no mention was made of the necessary element of good motive or justifiable ends. In any event, the question of exclusion of this testimony going to motive was not raised by motion in the trial court, on appeal in Illinois, or before us.
23
The law struck down by the New Jersey court in State of New Jersey v. Klapprott, 127 N.J.L. 395, 22 A.2d 877, 880, was quite different than the one before us and was not limited, as is the Illinois statute, by construction or usage. Indeed, in that case the court emphasized that 'It is not a case of libel,' and contrasted the history at common law of criminal prosecutions for written and spoken defamation.
1
1 William & Mary, Sess. 2, c. 2 (1689).
2
Eighth Resolution of the Continental Congress of 1774.
3
E.g., Grosjean v. American Press Co., 297 U.S. 233, 244, 245, 249, 56 S.Ct. 444, 446, 447, 448, 80 L.Ed. 660; Lovell v. City of Griffin, 303 U.S. 444, 450, 58 S.Ct. 666, 668, 82 L.Ed. 949; Schneider v. State of New Jersey, 308 U.S. 147, 160, 60 S.Ct. 146, 150, 84 L.Ed. 155; Thornhill v. State of Alabama, 310 U.S. 88, 95, 60 S.Ct. 736, 740, 84 L.Ed. 1093; Minersville School District v. Gobitis, 310 U.S. 586, 593, 60 S.Ct. 1010, 1012, 84 L.Ed. 1375; West Virginia State Board of Education v. Barnette, 319 U.S. 624, 639, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628; Thomas v. Collins, 323 U.S. 516, 529—530, concurring opinion, 545, 65 S.Ct. 315, 322, 329, 89 L.Ed. 430; Pennekamp v. State of Florida, 328 U.S. 331, 349, 66 S.Ct. 1029, 1038, 90 L.Ed. 1295.
4
The Court's finding of a close kinship between 'criminal libel' and 'group libel' because both contain the word 'libel' and have some factors in common is reminiscent of what Earl Stanhope said in 1792 in discussing Mr. Fox's Libel Bill. He was arguing that a jury of laymen might more likely protect liberty than judges, because judges were prone to rely too heavily on word books. 'He put the case, that an action for a libel was brought for using a modern word, not to be found in any grammar or glossary, viz. for saying that a man was 'a great bore;' a jury would laugh at such a ground of prosecution, but the judges would turn to their grammars and glossaries, and not being able to meet with it, would say they could not find such a phrase as 'a great bore,' but they had found a wild boar, which no doubt it meant; and yet it could not be, as a wild boar had four legs, and a man was a two legged animal; then it must mean, that the plaintiff was like a wild boar in disposition, which was a wicked libel, and therefore let the defendant be hanged.' 29 Hansard, Parliamentary History of England, p. 1412.
1
'It shall be unlawful for any person, firm or corporation to manufacture, sell, or offer for sale, advertise or publish, present or exhibit in any public place in this state any lithograph, moving picture, play, drama or sketch, which publication or exhibition portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion which said publication or exhibition exposes the citizens of any race, color, creed or religion to contempt, derision, or obloquy or which is productive of breach of the peace or riots. Any person, firm or corporation violating any of the provisions of this section, shall be guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine of not less than fifty dollars ($50.00), nor more than two hundred dollars ($200.00).'
2
People v. Beauharnais, 408 Ill. 512, 514, 97 N.E.2d 343, 344—345. The Exhibit A referred to in the information is the lithograph referred to in the instructions to the jury as People's Exhibit 3.
3
408 Ill. 512, at pages 515—516 and 517, 97 N.E.2d 343, at pages 345—346. If the highest court of the state treats the federal question as properly before it, and decides the question, the question is reviewable here, regardless of the manner in which it was raised in the inferior courts of the state. See Whitney v. People of State of California, 274 U.S. 357, 361, 47 S.Ct. 641, 643, 71 L.Ed. 1095, and cases there cited.
4
Hebert v. State of Louisiana, 272 U.S. 312, 316, 47 S.Ct. 103, 104, 71 L.Ed. 270; Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288; Adamson v. People of State of California, 332 U.S. 46, 66, 67 S.Ct. 1672, 1682, 91 L.Ed. 1903.
5
Gitlow v. People of State of New York 268 U.S. 652, 666, 672, 45 S.Ct. 625, 629, 632, 69 L.Ed. 1138; Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 707, 51 S.Ct. 625, 627, 75 L.Ed. 1357; Pennekamp v. State of Florida, 328 U.S. 331, 335, 66 S.Ct. 1029, 1031, 90 L.Ed. 1295.
6
De Jonge v. State of Oregon, 299 U.S. 353, 365, 57 S.Ct. 255, 260, 81 L.Ed. 278: 'The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.'
7
See 333 U.S. at page 520, 68 S.Ct. at page 672. Cf. Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Herndon v. Lowry, 301 U.S. 242, 263—264, 57 S.Ct. 732, 741 742, 81 L.Ed. 1066.
8
283 U.S. at page 361, 51 S.Ct. at page 533:
'Any person who displays a red flag, banner or badge or any flag, badge, banner, or device of any color or form whatever in any public place or in any meeting place or public assembly, or from or on any house, building or window as a sign, symbol or emblem of opposition to organized government or as an invitation or stimulus to anarchistic action or as an aid to propaganda that is of a seditious character is guilty of a felony.' Then § 403a of the California Penal Code.
9
283 U.S. at page 368, 51 S.Ct. at page 535. See also Williams v. State of North Carolina, 317 U.S. 287, 291—292, 63 S.Ct. 207, 209—210, 87 L.Ed. 279. Cf. Thomas v. Collins, 323 U.S. 516, 529, 65 S.Ct. 315, 322, 89 L.Ed. 430; Cramer v. United States, 325 U.S. 1, 36, note 45, 65 S.Ct. 918, 935, 89 L.Ed. 1441.
10
Smith-Hurd Ill.Ann.Stat.1936, c. 38, § 402, quoted in majority opinion at note 5.
11
People v. Simcox, 379 Ill. 347, 40 N.E.2d 525; People v. White Circle League of America, 1951, 408 Ill. 564, 97 N.E.2d 811. See also Fox Film Corp. v. Collins, 236 Ill.App. 281; Bevins v. Prindable, D.C., 39 F.Supp. 708, affirmed 314 U.S. 573, 62 S.Ct. 116, 86 L.Ed. 465.
12
Indeed, if the Illinois courts had been inclined to interpret their statute as this Court now interprets it, they could have done so only by reading out of their statute the disjunctive clause 'or which is productive of breach of the peace or riots.' (Quoted 343 U.S. 251, 72 S.Ct. 728 of majority opinion.) If the Illinois courts were inclined to read this disjunctive as a conjunctive, they would presumably have reversed Beauharnais' conviction, for the information in this case did not charge that publication of his lithograph would be productive of breach of the peace or riots.
13
'The Constitution never intended to invest judges with a discretion which cannot be tried and measured by the plain and palpable standard of law. * * * On a special verdict for murder, the life of the prisoner does not depend upon the religious, moral, or philosophical ideas of the judges. * * * If he is condemned * * * his conduct is brought to a precise, clear, intelligible standard, and cautiously measured by it; it is the law, therefore, and not the judge, which condemns him. * * *'
Argument in the King's Bench in the Dean of St. Asaph's case (1783—1784), 21 Howell's State Trials 847, 1006.
1
Murdock v. Com. of Pennsylvania, 319 U.S. 105, 115, 63 S.Ct. 870, 876, 87 L.Ed. 1292; Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 322, 89 L.Ed. 430; Saia v. People of State of New York, 334 U.S. 558, 561, 68 S.Ct. 1148, 1150, 92 L.Ed. 1574.
2
Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137; Feiner v. People of State of New York, 340 U.S. 315, 71 S.Ct. 303, 95 L.Ed. 267. Cf. Breard v. City of Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233; American Communications Ass'n v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925; Osman v. Douds, 339 U.S. 846, 70 S.Ct. 901, 94 L.Ed. 1328.
3
Lochner v. People of State of New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937; Coppage v. State of Kansas, 236 U.S. 1, 35 S.Ct. 240, 59 L.Ed. 441; Ribnik v. McBride, 277 U.S. 350, 48 S.Ct. 545, 72 L.Ed. 913.
4
Nebbia v. People of State of New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940; West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703; Lincoln Federal Labor Union No. 19129, A.F. of L. v. Northwestern Iron & Metal Co., 335 U.S. 525, 69 S.Ct. 251, 93 L.Ed. 212; Day-Brite Lighting, Inc., v. State of Missouri, 342 U.S. 421, 72 S.Ct. 405.
1
First Amendment: 'Congress shall make no law * * * abridging the freedom of speech, or of the press * * *.' Fourteenth Amendment:
2
1 Stat. 596 (1798) § 2: 'And be it further enacted, That if any person shall write, print, utter or publish * * * any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute * * * such person * * * shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.' Section 3: '* * * it shall be lawful for the defendant * * * to give in evidence in his defence, the truth of the matter contained in the publication charged as a libel. And the jury who shall try the cause, shall have a right to determine the law and the fact, under the direction of the court, as in other cases.'
3
Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 22, 63 L.Ed. 1173.
4
United States v. Smith, D.C., 173 F. 227. In discharging the defendants, Judge Anderson said:
'To my mind that man has read the history of our institutions to little purpose who does not look with grave apprehension upon the possibility of the success of a proceeding such as this. If the history of liberty means anything, if constitutional guaranties are worth anything, this proceeding must fail.
'If the prosecuting officers have the authority to select the tribunal, if there be more than one tribunal to select from, if the government has that power, and can drag citizens from distant states to the capital of the nation, there to be tried, then, as Judge Cooley says, this is a strange result of a revolution where one of the grievances complained of was the assertion of the right to send parties abroad for trial.' 173 F. at page 232.
5
Riesman, 'Group Libel,' 42 Col.L.Rev. 727, 748. See also 87 Cong.Rec. 5830—5841.
6
The following is a list of such state constitutional provisions, coupled with the year of the adoption of the Constitution in which they are contained: Alabama, 1901, Art. I, §§ 4, 12; Arizona, 1912, Art. II, § 6; Arkansas, 1874, Art. II, § 6; California, 1879, Art. I, § 9; Colorado, 1876, Art. II, § 10; Delaware, 1897, Art. I, § 5; Florida, 1887, Declaration of Rights, § 13, F.S.A.; Georgia, 1945, Art. I, § 1, par. 15; Idaho, 1890, Art. I, § 9; Illinois, 1870, Art. II, § 4; Indiana, 1851, Art. I, § 9; Iowa, 1857, Art. I, § 7, I.C.A.; Kansas, 1859, Bill of Rights, § 11; Kentucky, 1891, §§ 8, 9; Louisiana, 1921, Art. I, § 3; Maine, 1876, Art. I, § 4; Maryland, 1867, Declaration of Rights, Art. 40; Michigan, 1908, Art. II, § 4; Minnesota, 1857, Art. I, § 3, M.S.A.; Mississippi, 1890, Art. III, § 13; Missouri, 1945, Art. I, § 8, V.A.M.S.; Montana, 1889, Art. III, § 10; Nebraska, 1875, Art. I, § 5; Nevada, 1864, Art. I, § 9; New Jersey, 1947, Art. I, par. 6, N.J.S.A.; New Mexico, 1912, Art. II, § 17; New York, 1938, Art. I, § 8; North Carolina, 1876, Art. I, § 20; North Dakota, 1889, Art. I, § 9; Ohio, 1851, Art. I, § 11; Oklahoma, 1907, Art. II, § 22; Oregon, 1859, Art. I, § 8; Pennsylvania, 1874, Art. I, § 7, P.S.; Rhode Island, 1843, Art. I, § 20; South Dakota, 1889, Art. VI, § 5; Tennessee, 1870, Art. I, § 19; Texas, 1876, Art. I, § 8, Vernon's Ann.St.; Utah, 1895, Art. I, § 15; Virginia, 1902, Art. I, § 12; Washington, 1889, Art. I, § 5; West Virginia, 1872, Art. III, § 7; Wisconsin, 1848, Art. I, § 3; Wyoming, 1889, Art. I, § 20.
7
Congress required that Reconstructed States approve State Constitutions consistent with the Federal Constitution, and also that each State ratify the Fourteenth Amendment. Examples of state constitutional provisions expressly referring to libel, but which Constitutions were nevertheless approved by Congress, follow: Arkansas: Const.1868, Art. I, § 2 provides that truth coupled with good motives shall be a complete defense to a criminal libel prosecution; Arkansas readmitted by 15 Stat. 72 (1868); Florida: Const. 1868, Art. I, § 10, provides that truth coupled with good motives shall be a complete defense to a criminal libel prosecution; Florida readmitted by 15 Stat. 73 (1868); Mississippi: Const.1868, Art. I, § 4 enacts Fox's Libel Act in substance; Mississippi readmitted by 16 Stat. 67 (1870); South Carolina: Const.1868, Art. I, § 8 enacts Fox's Libel Act in substance, and provides that truth and good motives shall be a complete defense to a criminal libel prosecution; South Carolina readmitted by 15 Stat. 73 (1868); Texas: Const.1868, Art. I, § 6 enacts Fox's Libel Act in substance; Texas readmitted by 16 Stat. 80 (1870).
8
In the case of States erected out of the public domain, one of two procedures was generally followed. Either Congress would itself enact a statute admitting a particular State, stating therein that the Constitution of the State in question was consistent with the Federal Constitution; or else the Congressional Act would provide that the State would be admitted upon its adoption of a Constitution consistent with the Federal Constitution. In the latter case the actual admission occurred by proclamation of the President.
Colorado: Art. II, § 10 enacts Fox's Libel Act in substance, and provides that truth and good motives shall constitute a complete defense in a libel prosecution; admitted by 18 Stat. 474 (1875), 19 Stat. 665 (1876); Montana: Art. III, § 10 enacts Fox's Libel Act in substance; admitted by 25 Stat. 676 (1889), 26 Stat. 1551 (1889); New Mexico: Art. II, § 17 provides that truth and good motives shall constitute a complete defense to a criminal libel prosecution; admitted by 36 Stat. 557 (1910), 37 Stat. 39 (1911); Utah: Art. I, § 15 like Colorado provisions; admitted by 28 Stat. 107 (1894), 29 Stat. 876 (1896); Wyoming: Art. I, § 20 like Colorado provisions; admitted by 26 Stat. 222 (1890).
9
See Fairman and Morrison, Does the Fourteenth Amendment Incorporate the Bill of Rights? 2 Stan.L.Rev. 5—173.
10
3 Johns.Cas. 337, 413.
11
Const.1821, Art. VII, § 8; Const.1846, Art. I, § 8; Const.1894, Art. I, § 8; Const.1938, Art. I, § 8.
12
Arkansas, California, Colorado, Delaware, Florida, Iowa, Kansas, Maine, Mississippi, Missouri, Montana, Nebraska, Nevada, New Jersey, New Mexico, North Dakota, Ohio, Oklahoma, Pennsylvania, Tennessee, Texas, Utah, Wisconsin, and Wyoming. For citations to article and section, see n. 6, supra.
13
Arizona, Georgia, Idaho, Kentucky, Louisiana, Maryland, Michigan, Minnesota, North Carolina, Oregon, Virginia, and Washington. The Georgia provision, Const.1945, Art. I, § 1, par. 15, representative of the rest, reads: '* * * any person may speak, write and publish his sentiments, on all subjects, being responsible for the abuse of that liberty.' For citations to article and section, see n. 6, supra.
14
Alabama, Illinois, Indiana, Rhode Island, and West Virginia. For citations to article and section, see n. 6, supra.
15
Connecticut, Const.1818, Art. I, § 6; New Hampshire, Const.1784, Part I, Art. 22; South Carolina, Const.1895, Art. I, § 4; Vermont, Const.1793, c. I, Art. 13. The Massachusetts provision, Const.1780, Part I, Art. XVI reads as follows: 'The liberty of the press is essential to the security of freedom in a state it ought not, therefore, to be restrained in this commonwealth.'
16
State v. Gardner, 112 Conn. 121, 151 A. 349; Commonwealth v. Szliakys, 254 Mass. 424, 150 N.E. 190; Noyes v. Thorpe, 73 N.H. 481, 62 A. 787, 12 L.R.A.,N.S., 636; State v. Gurry, 163 S.C. 1, 161 S.E. 191; State v. Colby, 98 Vt. 96, 126 A. 510. Decisional law of other States is collected in Note, 1 Bflo.L.Rev. 258.
17
Lee, 'A History of American Journalism' (Garden City, 1923).
18
Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470.
19
Gitlow v. People of State of New York, 268 U.S. 652, 672, 45 S.Ct. 625, 632, 69 L.Ed. 1138.
20
It appears that group libel was not unknown to common law. See Scott, Publishing False News, 30 Can.B.Rev. 37, 42—43.
21
Tannenhaus, Group Libel, 35 Cornell L.Q. 261; Riesman, Democracy and Defamation: Control of Group Libel, 42 Col.L.Rev. 727; see also Note, 1 Bflo.L.Rev. 258.
| 23
|
343 U.S. 326
72 S.Ct. 690
96 L.Ed. 978
UNITED STATESv.OREGON STATE MEDICAL SOC. et al.
No. 19.
Argued Jan. 4 and 7, 1952.
Decided April 28, 1952.
[Syllabus from pages 326-327 intentionally omitted]
Mr. Stanley M. Silverberg, Washington, D.C., for appellant.
Mr. Nicholas Jaurequy, Portland, Or., for appellees.
Mr. Justice JACKSON delivered the opinion of the Court.
1
This is a direct appeal by the United States1 from dismissal by the District Court2 of its complaint seeking an injunction to prevent and restrain violations of §§ 1 and 2 of the Sherman Act. 26 Stat. 209, as amended, 15 U.S.C. §§ 1, 2, 15 U.S.C.A. §§ 1, 2.3
2
Appellees are the Oregon State Medical Society, eight county medical societies, Oregon Physicians Service (an Oregon corporation engaged in the sale of prepaid medical care), and eight doctors who are or have been at some time responsible officers in those organizations.
3
This controversy centers about two forms of 'contract practice' of medicine. In one, private corporations organized for profit sell what amounts to a policy of insurance by which small periodic payments purchase the right to certain hospital facilities and medical attention. In the other, railroad and large industrial employers of labor contract with one or more doctors to treat their ailing or injured employees. Both forms of 'contract practice,' for rendering the promised medical and surgical service, depend upon doctors or panels of doctors who cooperate on a fee basis or who associate themselves with the plan on a full or part-time employment basis.
4
Objections of the organized medical profession to contract practice are both monetary and ethical. Such practice diverts patients from independent practitioners to contract doctors. It tends to standardize fees. The ethical objection has been that intervention by employer or insurance company makes a tripartite matter of the doctor-patient relation. Since the contract doctor owes his employment and looks for his pay to the employer or the insurance company rather than to the patient, he serves two masters with conflicting interests. In many cases companies assumed liability for medical or surgical service only if they approved the treatment in advance. There was evidence of instances where promptly needed treatment was delayed while obtaining company approval, and where a lay insurance official disapproved treatment advised by a doctor.
5
In 1936, five private associations were selling prepaid medical certificates in Oregon, and doctors of that State, alarmed at the extent to which private practice was being invaded and superseded by contract practice, commenced a crusade to stamp it out. A tooth-and-claw struggle ensued between the organized medical profession, on the one hand, and the organizations employing contract doctors on the other. The campaign was bitter on both sides. State and county medical societies adopted resolutions and policy statements condemning contract practice and physicians who engaged in it. They brought pressure on individual doctors to decline or abandon it. They threatened expulsion from medical societies, and one society did expel several doctors for refusal to terminate contract practices.
6
However, in 1941, seven years before this action was commenced, there was an abrupt about-face on the part of the organized medical profession in Oregon. It was apparently convinced that the public demanded and was entitled to purchase protection against unexpected costs of disease and accident, which are catastrophic to persons without reserves. The organized doctors completely reversed their strategy, and, instead of trying to discourage prepaid medical service, decided to render it on a nonprofit basis themselves.
7
In that year, Oregon Physicians' Service, one of the defendants in this action, was formed. It is a nonprofit Oregon corporation, furnishing prepaid medical, surgical, and hospital care on a contract basis. As charged in the complaint, 'It is sponsored and approved by the Oregon State Medical Society and is controlled and operated by members of that society. It sponsors, approves, and cooperates with component county societies and organizations controlled by the latter which offer prepaid medical plans.' 95 F.Supp. at page 121. After seven years of successful operation, the Government brought this suit against the doctors, their professional organizations and their prepaid medical care company, asserting two basic charges: first, that they conspired to restrain and monopolize the business of providing prepaid medical care in the State of Oregon, and, second, that they conspired to restrain competition between doctor-sponsored prepaid medical plans within the State of Oregon in that Oregon Physicians' Service would not furnish prepaid medical care in an area serviced by a local society plan.
8
The District Judge, after a long trial, dismissed the complaint on the ground that the Government had proved none of its charges by a preponderance of evidence. The direct appeal procedure does not give us the benefit of review by a Court of Appeals of findings of fact.
9
The appeal brings to us no important questions of law or unsettled problems of statutory construction. It is much like United States v. Yellow Cab Co., 338 U.S. 338, 70 S.Ct. 177, 94 L.Ed. 150. Its issues are solely ones of fact. The record is long, replete with conflicts in testimony, and includes quantities of documentary material taken from the appellees' files and letters written by doctors, employers, and employees. The Government and the appellees each put more than two score of witnesses on the stand. At the close of the trial the judge stated that his work 'does not permit the preparation of a formal opinion in so complex a case. I will state my conclusions on the main issues and then will append some notes made at various stages throughout the trial. These may be of aid to counsel in the preparation of Findings of Fact and Conclusions of Law to be submitted as a basis for final judgment.' 95 F.Supp. at page 104. These notes indicated his disposition of the issues, but the Government predicates a suggestion of bias on irrelevant soliloquies on socialized medicine, socialized law, and the like, which they contained. Admitting that these do not add strength or persuasiveness to his opinion, they do not becloud his clear disposition of the main issues of the case, in all of which he ruled against the Government. Counsel for the doctors submitted detailed findings in accordance therewith. The Government did not submit requests to find, but by letter raised objections to various proposals of the appellees.
10
The trial judge found that appellees did not conspire to restrain or attempt to monopolize prepaid medical care in Oregon in the period 1936—1941, and that, even if such conspiracy during that time was proved, it was abandoned in 1941 with the formation of Oregon Physicians' Service marking the entry of appellees into the prepaid medical care business. He ruled that what restraints were proved could be justified as reasonable to maintain proper standards of medical ethics. He found that supplying prepaid medical care within the State of Oregon by doctor-sponsored organizations does not constitute trade or commerce within the meaning of the Sherman Act, but he declined to rule on the question whether supplying prepaid medical care by the private associations is interstate commerce.
11
The Government asks us to overrule each of these findings as contrary to the evidence, and to find that the business of providing prepaid medical care is interstate commerce. We are asked to review the facts and reverse and remand the case 'for entry of a decree granting appropriate relief.' We are asked in substance to try the case de novo on the record, make findings and determine the nature and form of relief. We have heretofore declined to give such scope to our review. United States v. Yellow Cab Co., supra.
12
While Congress has provided direct appeal to this Court, it also has provided that where an action is tried by a court without a jury 'findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.' Rule 5i(a), Fed.Rules Civ.Proc., 28 U.S.C.A. There is no case more appropriate for adherence to this rule than one in which the complaining party creates a vast record of cumulative evidence as to long-past transactions, motives, and purposes, the effect of which depends largely on credibility of witnesses.
13
The trial court rejected a grouping by the Government of its evidentiary facts into four periods, 1930—1936, the year 1936, 1936—1941, and 1941 to trial. That proposal projected the inquiry over an eighteen-year period before the action was instituted. The court accepted only the period since the organization of Oregon Physicians' Service as significant and rejected the earlier years as 'ancient history' of a time 'when the Doctors were trying to find themselves. * * * It was a period of groping for the correct position to take to accord with changing times.' 95 F.Supp. at page 105. Of course, present events have roots in the past, and it is quite proper to trace currently questioned conduct backwards to illuminate its connections and meanings. But we think the trial judge was quite right in rejecting pre-1941 events as establishing the cause of action the Government was trying to maintain, and adopt his division of the time involved into two periods, 1936—1941, and 1941 to trial.
14
It will simplify consideration of such cases as this to keep in sight the target at which relief is aimed. The sole function of an action for injunction is to forestall future violations. It is so unrelated to punishment or reparations for those past that its pendency or decision does not prevent concurrent or later remedy for past violations by indictment or action for damages by those injured. All it takes to make the cause of action for relief by injunction is a real threat of future violation or a contemporary violation of a nature likely to continue or recur. This established, it adds nothing that the calendar of years gone by might have been filled with transgressions. Even where relief is mandatory in form, it is to undo existing conditions, because otherwise they are likely to continue. In a forward-looking action such as this, an examination of 'a great amount of archeology'4 is justified only when it illuminates or explains the present and predicts the shape of things to come.
15
When defendants are shown to have settled into a continuing practice or entered into a conspiracy violative of anti-trust laws, courts will not assume that it has been abandoned without clear proof. Local 167 of International Brotherhood of Teamsters, etc. v. United States, 291 U.S. 293, 298, 54 S.Ct. 396, 398, 78 L.Ed. 804. It is the duty of the courts to beware of efforts to defeat injunctive relief by protestations of repentance and reform, especially when abandonment seems timed to anticipate suit, and there is probability of resumption. Cf. United States v. United States Steel Corp., 251 U.S. 417, 445, 40 S.Ct. 293, 297, 64 L.Ed. 343.
16
But we find not the slightest reason to doubt the genuineness, good faith or permanence of the changed attitude and strategy of these defendant-appellees which took place in 1941. It occurred seven years before this suit was commenced and, so far as we are informed, before it was predictable. It did not consist merely of pretensions or promises but was an overt and visible reversal of policy, carried out by extensive operations which have every appearance of being permanent because wise and advantageous for the doctors. The record discloses no threat or probability of resumption of the abandoned warfare against prepaid medical service and the contract practice it entails. We agree with the trial court that conduct discontinued in 1941 does not warrant the issuance of an injunction in 1949. Industrial Ass'n of San Francisco v. United States, 268 U.S. 64, 84, 45 S.Ct. 403, 408, 69 L.Ed. 849.
17
Appellees, in providing prepaid medical care, may engage in activities which violate the antitrust laws. They are now competitors in the field and restraints, if any are to be expected, will be in their methods of promotion and operation of their own prepaid plan. Our duty is to inquire whether any restraints have been proved of a character likely to continue if not enjoined.
18
Striking the events prior to 1941 out of the Government's case, except for purposes of illustration or background information, little of substance is left. The case derived its coloration and support almost entirely from the abandoned practices. It would prolong this opinion beyond useful length, to review evidentiary details peculiar to this case. We mention what appear to be some highlights.
19
Only the Multnomah County Medical Society resorted to expulsions of doctors because of contract-practice activities, and there have been no expulsions for such cause since 1941. There were hints in the testimony that Multnomah was reviving the expulsion threat a short time before this action was commenced, but nothing came of it, and what that Society might do within the limits of its own membership does not necessarily indicate a joint venture or conspiracy with other appellees.
20
Some emphasis is placed on a report of a meeting of the House of Delegates of the State Society at which it was voted that the 'private patient status' policy theretofore applied to private cmmercial hospital association contracts be extended to the industrial and railroad type of contracts. Any significance of this provision seems neutralized by another paragraph in the same report, which reads: 'A receipt should be furnished each patient at the time of each visit, as it is understood the (industrial and railroad plan) companies concerned will probably establish a program of reimbursement to the affected employees.' That does not strike us as a threat to restrict the practice of industrial and railroad companies of reimbursing employees for medical expenses and we can not say that any ambiguity was not properly resolved in appellees' favor by the trial court.
21
The record contains a number of letters from doctors to private associations refusing to accept checks directly from them. Some base refusal on a policy of their local medical society, others are silent as to reasons. Some may be attributed to the writers' personal resistance to dealing directly with the private health associations, for it is clear that many doctors objected to filling out the company forms and supplying details required by the associations, and preferred to confine themselves to direct dealing with the patient and leaving the patient to deal with the associations. Some writers may have mistaken or misunderstood the policy of local associations. Others may have avoided disclosure of personal opposition by the handy and impersonal excuse of association 'policy.' The letters have some evidentiary value, but it is not compelling and, weighed against the other post-1941 evidence, does not satisfy us that the trial court's findings are 'clearly erroneous.'
22
Since no concerted refusal to deal with private health associations has been proved, we need not decide whether it would violate the antitrust laws. We might observe in passing, however, that there are ethical considerations where the historic direct relationship between patient and physician is involved which are quite different than the usual considerations prevailing in ordinary commercial matters. This Court has recognized that forms of competition usual in the business world may be demoralizing to the ethical standards of a profession. Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608, 55 S.Ct. 570, 79 L.Ed. 1086.
23
Appellees' evidence to disprove conspiracy is not conclusive, is necessarily largely negative, but is too persuasive for us to say it was clear error to accept it. In 1948, 1,210 of the 1,660 licensed physicians in Oregon were members of the Oregon State Medical Society, and between January 1, 1947, and June 30, 1948, 1,085 Oregon doctors billed and received payment directly from the Industrial Hospital Association, only one of the several private plans operating in the State. Surely there was no effective boycott, and ineffectiveness, in view of the power over its members which the Government attributes to the Society, strongly suggests the lack of an attempt to boycott these private associations. A parade of local medical society members from all parts of the State, apparently reputable, credible, and informed professional men, testified that their societies now have no policy of discrimination against private health associations, and that no attempts are made to prevent individual doctors from cooperating with them. Members of the governing councils of the State and Multnomah County Societies testified that since 1940 there have been no suggestions in their meetings of attempts to prevent individual doctors from serving private associations. The manager of Oregon Physicians' Service testified that at none of the many meetings and conferences of local societies attended by him did he hear any proposal to prevent doctors from cooperation with private plans.
24
If the testimony of these many responsible witnesses is given credit, no finding of conspiracy to restrain or monopolize this business could be sustained. Certainly we cannot say that the trial court's refusal to find such a conspiracy was clearly erroneous.
25
The other charge is that appellees conspired to restrain competition between the several doctor-sponsored organizations within the State of Oregon. The charge here, as we understand it from paragraph 33(i) of the complaint, 95 F.Supp. at page 124, is that Oregon Physicians' Service, the state-wide organization, and the county-medical-society-sponsored plans agreed not to compete with one another. Apparently if a county was provided with prepaid medical care by a local society, the state society would stay out, or if the county society wanted to inaugurate a local plan, the state society would withdraw from the area.
26
This is not a situation where suppliers of commercial commodities divide territories and make reciprocal agreements to exploit only the allotted market, thereby depriving allocated communities of competition. This prepaid plan does not supply to, and its allocation does not withhold from, any community medical service or facilities of any description. No matter what organization issues the certificate, it will be performed, in the main, by the local doctors. The certificate serves only to prepay their fees. The result, if the state association should enter into local competition with the county association, would be that the inhabitants could prepay medical services through either one of two medical society channels. There is not the least proof that duplicating sources of the prepaid certificates would make them cheaper, more available or would result in an improved service or have any beneficial effect on anybody. Through these nonprofit organizations the doctors of each locality, in practical effect, offer their services and hospitalization on a prepaid basis instead of on the usual cash fee or credit basis. To hold it illegal because they do not offer their services simultaneously and in the same locality through both a state and a county organization would be to require them to compete with themselves in sale of certificates. Under the circumstances proved here, we cannot regard the agreement by these nonprofit organizations not to compete as an unreasonable restraint of trade in violation of the Sherman Act.
27
With regard to this charge, the court found, 'The sale of medical services, by Doctor Sponsored Organizations, as conducted within the State of Oregon, is not trade or commerce within the meaning of Section 1 of the Sherman Anti-Trust Law, nor is it commerce within the meaning of the constitutional grant of power to Congress 'To regulate Commerce * * * among the several States'.' 95 F.Supp. at page 118. If that finding in both aspects is not to be overturned as clearly erroneous, it, of course, disposes of this charge, for if there was no restraint of interstate commerce, the conduct charged does not fall within the prohibitions of the Sherman Act.
28
Almost everything pointed to in the record by the Government as evidence that interstate commerce is involved in this case relates to across-state-line activities of the private associations. It is not proven, however, to be adversely affected by any allocation of territories by doctor-sponsored plans. So far as any evidence brought to our attention discloses, the activities of the latter are wholly intrastate. The Government did show that Oregon Physicians Service made a number of payments to out-of-state doctors and hospitals, presumably for treatment of polycyholders who happened to remove or temporarily to be away from Oregon when need for service arose. These were, however, few, sporadic and incidental. Cf. Industrial Ass'n of San Francisco v. United States, supra, 268 U.S. at page 84, 45 S.Ct. at page 408, 69 L.Ed. 849.
29
American Medical Ass'n v. United States, 317 U.S. 519, 63 S.Ct. 326, 87 L.Ed. 434, does not stand for the proposition that furnishing of prepaid medical care on a local plane is interstate commerce. That was a prosecution under § 3 of the Sherman Act of a conspiracy to restrain trade or commerce in the District of Columbia. Interstate commerce was not necessary to the operation of the statute there.
30
We conclude that the Government has not clearly proved its charges. Certainly the Court's findings are not clearly erroneous. 'A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.' United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746. The Government's contentions have been plausibly and earnestly argued but the record does not leave us with any 'definite and firm conviction that a mistake has been committed.'
31
As was aptly stated by the New York Court of Appeals, although in a case of a rather different substantive nature: 'Face to face with living witnesses, the original trier of the facts holds a position of advantage from which appellate judges are excluded. In doubtful cases, the exercise of his power of observation often proves the most accurate method of ascertaining the truth. * * * How can we say the judge is wrong? We never saw the witnesses. * * * To the sophistication and sagacity of the trial judge the law confides the duty of appraisal.' Boyd v. Boyd, 252 N.Y. 422, 429, 169 N.E. 632, 634.
32
Affirmance is, of course, without prejudice to future suit if practices in conduct of the Oregon Physicians' Service or the county services, whether or not involved in the present action, shall threaten or constitute violation of the antitrust laws. Cf. United States v. Reading Co., 226 U.S. 324, 373, 33 S.Ct. 90, 104, 57 L.Ed. 243.
33
Judgment affirmed.
34
Mr. Justice BLACK is of opinion that the judgment below is clearly erroneous and should be reversed.
35
Mr. Justice CLARK took no part in the consideration or decision of this case.
1
Pursuant to § 2 of the Expediting Act of 1903, 32 Stat. 823, as amended, 15 U.S.C. § 29, 15 U.S.C.A. § 29.
2
95 F.Supp. 103.
3
26 Stat. 209, 15 U.S.C. § 1, 15 U.S.C.A. § 1: 'Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States * * * is declared to be illegal * * *.'
15 U.S.C. § 2, 15 U.S.C.A. § 2: 'Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States * * * shall be deemed guilty of a misdemeanor * * *.'
4
Judge Augustus Hand, 'Trial Efficiency,' dealing with antitrust cases, Business Practices Under Federal Antitrust Laws, Symposium, New York State Bar Assn. (C.C.H., 1951) 31—32. See also Sec. VIII, Procedure in Antitrust and Other Protracted Cases, a Report adopted September 26, 1951, by the Judicial Conference of the United States.
| 78
|
343 U.S. 373
72 S.Ct. 716
96 L.Ed. 1008
SWIFT & CO.v.UNITED STATES et al.
No. 282.
Argued March 6, 1952.
Decided May 5, 1952.
[Syllabus from pages 373-374 intentionally omitted]
Frederick Bernays Wiener, Washington, D.C., for appellant.
Daniel W. Knowlton, Washington, D.C., for appellees, United States and Interstate Commerce Commission.
Douglas F. Smith, Chicago, Ill., for appellees, railroad defendants.
Lee J. Quasey, Chicago, Ill., for appellees, National Live Stock Producers Assn. and others.
Nuel D. Belnap, Chicago, Ill., for appellees, Chicago Live Stock Exchange and others.
Guy A. Gladson, Bryce L. Hamilton, Chicago, Ill., for appellees Union Stock Yard and Transit Co. of Chicago.
Mr. Justice MINTON delivered the opinion of the Court.
1
On July 28, 1947, the appellant, Swift and Company, filed a complaint, later amended, before the Interstate Commerce Commission against the Atchison, Topeka and Santa Fe and other railroads, alleging that the charges on direct carload shipments of livestock1 from points outside Illinois to its proposed new plant in the Chicago Packingtown area are (1) unreasonable, (2) unduly prejudicial to livestock as a commodity, and (3) unduly prejudicial to Swift as against its competitors, all in violation of the Interstate Commerce Act.2 Swift asked for the establishment of reasonable joint through rates for line-haul carriers serving Chicago and the Chicago Junction Railroad's lessee, the Chicago River and Indiana Railroad, hereafter called Junction,3 such joint rates to include delivery of livestock to Swift's industrial siding at its proposed plant and not to exceed the line-haul rates now in effect at the Union Stock Yards and other points of delivery on line-haul railroads in the area. Swift's proposed plant, near its present plant, will be located on Junction's rails and not on those of any line-haul carrier.
2
After Swift filed its complaint, Junction sought to file a new tariff cancelling the switching area. present tariff provides a flat charge for switching carload freight to and from industrial sidings and team tracks; under the new tariff, Junction would not have offered switching services for livestock under any circumstances. Swift and others objected, and the filing was suspended so that the Commission could hear Swift's complaint and Junction's request together on a consolidated record.
3
The Commission dismissed the complaint and refused to cancel the switching tariff as to livestock. Swift & Co. v. Atchison, T. & S.F.R. Co., 274 I.C.C. 557. Swift then sought review of the Commission's order of dismissal by a statutory three-judge District Court. That court sustained the Commission's order, and this appeal followed pursuant to 28 U.S.C. §§ 1253 and 2101(b), 28 U.S.C.A. §§ 1253, 2101(b). No question is raised as to the Commission's refusal to cancel the switching tariff.
4
All livestock shipments by rail to the Chicago area are handled solely by the line-haul carriers; delivery is direct to line-haul terminals at the line-haul rate. Such terminals are the Stock Yards and those unloading pens located on switches directly adjoining a line-haul carrier's rails. Swift is the one large packer in Chicago that has such a line-haul terminal and can receive all its direct shipments of livestock at line-haul rates. This terminal, the Omaha Packing Plant, a Swift subsidiary situated two and one-half miles northeast of Swift's present plant and outside the Stock Yards district, is located on the rails of the Burlington Railroad, a line-haul carrier. Here Swift receives its direct livestock shipments, about 6,500 carloads annually, which it trucks to its plant in the Stock Yards area.4 The balance of the livestock delivered in Chicago, whether direct or otherwise, is delivered to the Stock Yards, with some minor exceptions, by the line-haul carriers over certain Junction running tracks to the Stock Yards unloading pens. The carriers have trackage rights on these running tracks for which a charge is paid to Junction. On direct shipments to a packer delivered to the Stock Yards, the Yards' facilities, including a vast system of runways, overpasses and tunnels, are used to drive the livestock from the unloading pens to the packer's plant. The charges for these facilities are fixed by the Secretary of Agriculture. Junction has never switched or handled any livestock except in an emergency.
5
The delivery of livestock in the Stock Yards area is to be contrasted with that of 'dead freight.'5 The line-haul carriers make no direct deliveries of dead freight; none of the approximately 500 industries in the area have plants located on line-haul rails and the line-haul carriers do not have trackage rights over the Junction rails which lead to the plants. Consequently, all dead freight is switched by Junction and delivered to the industrial sidings of team tracks alongside of and connecting with Junction's rails.
6
Since Junction provides only trackage rights for the livestock shipments to the Stock Yards, the line-haul rates on livestock do not include Junction as a participating carrier. Junction does participate, however, in joint rates for dead freight. For any switching operation not covered by line-haul rates in which Junction participates, Junction has a flat switching charge of $28.80 per car.6 This charge would apply to any direct shipments at Swift's proposed plant in Packingtown which, as we have noted, is not located on any line-haul rails but rather on Junction's rails.
7
Trains for the Stock Yards are made up at the break-up yards of the line-haul carriers located from a few to several miles from the Stock Yards. A train coming in from the west moves to the Ashland Yards of Junction, which are divided into the North and the South Yards. The North Yards are used for the receipt, separation, and distribution of cars of dead freight and empties outbound from the packers and other industries, while the South Yards are used for cars of dead freight inbound This division is made by three parallel running tracks owned by Junction, numbered 1102, 1103 and 1104, over which the line-haul carriers are permitted to operate in and out of the Stock Yards. Sixty-three percent of the trains to the Stock Yards area are composed exclusively of livestock. The balance are consolidated trains, carrying both livestock and dead freight.
8
An all-livestock train moves by line-haul carrier, using its own crew and equipment, eastward over Track 1103 to the unloading pens in the Stock Yards and is there spotted for unloading. While the cars are being unloaded, the engine cuts off, passes around to the other end of the train and couples on; when the unloading is completed, the train returns westward over Track 1102 or 1104 through Junction's Ashland Yards and back to its break-up yards with the empties. This all-livestock train is delivered to the Stock Yards in one movement by line-haul carriers for line-haul rates.
9
A consolidated train moves through the Ashland Yards from the break-up yards to a certain point on Track 1103, just as an all-livestock train. In this consolidated train, the dead-freight cars are hauled just behind the engine and the livestock cars in the rear. At a certain point on Track 1103 the dead-freight cars are cut out and switched into the South Yards upon one of the nine Junction receiving tracks, from which tracks Junction later moves the dead freight to the industrial sidings and team tracks of the packers and other industries located in the area. After the dead freight has been switched to the receiving tracks, the line-haul engine returns to Track 1103 to couple onto the livestock cars and move them to the unloading pens. While the dead freight is being switched to the South Yards, Track 1103, the only means of ingress to the Stock Yards from the west, is blocked by the livestock cars remaining on the track. Sometimes as many as four trains at a time are tied up by reason of the block on Track 1103.
10
An all-livestock train coming in from the east does not pass through the Ashland Yards but proceeds directly to the Stock Yards from the break-up yards. However, all dead freight moves through the Ashland Yards, as would all livestock to be delivered to Swift if its complaint were granted. The fact that most of the livestock shipments are handled by the western carriers makes this portion of the transportation operation unimportant for present purposes.
11
If this complaint were granted, livestock would move to Swift's proposed plant in the manner of dead freight. Instead of one movement, as the line-haul movement to the Stock Yards, there would be two movements—one to the receiving tracks in the South Ashland Yards made by the line-haul carriers, and the second movement by Junction from its South Yards to Swift's plant, located on Junction's rails. The tie-up on Track 1103, described above, would be increased accordingly as trains consigned to the Stock Yards would have to place any of Swift's livestock cars on the Junction receiving tracks. The congestion and costs involved would be increased by the fact that livestock cannot be handled as easily as dead freight. Livestock cars cannot be 'kicked' in switching operations as can dead-freight cars, which are stopped by collision with other cars. Livestock cars must be placed with a minimum of rough handling. Still further difficulties would be encountered because livestock must be unloaded, watered and fed every twenty-eight hours, in accordance with federal law. 45 U.S.C. § 71 et seq., 45 U.S.C.A. § 71 et seq. When livestock arrives in Chicago, there are generally only a few hours remaining for delivery to unloading pens in order to comply with this law. Therefore, expeditious handling of the livestock is required, especially since there are no facilities along Junction's rails for such unloading, watering and feeding. Some 31 hours are required for a car of dead freight to clear Ashland Yards and be delivered. It is apparent that livestock must be handled in much less time.
12
If the complaint were granted, Swift would not pay for the second or switching movement by Junction. Although Junction has never moved livestock in the past except in an emergency, under existing tariffs it can charge Swift the switching rate of $28.80 per car now applied to other commodities. But if Swift is to obtain what it seeks, the line-haul carrier must establish as the line-haul rate a joint rate with Junction which is no higher than the present line-haul rate. This would mean that the line-haul carrier must absorb the switching charge, or that both the switching charge and the present line-haul rate must be decreased, with the line-haul carrier and Junction sharing in absorbing the amount of the decrease.
13
The delivery of livestock through this bottleneck of Ashland Yards must be geared to provide for the expeditious and special handling that livestock must receive. The huge quantities of dead freight which are handled7 and the restricted facilities of Ashland Yards have resulted in the development, over a period of seventy years, of a complicated, intricate pattern of operation. For this reason, any attempt to change the pattern calls for the most expert consideration and administrative judgment—a task that courts are ill-fitted to perform. If the Commission gave weight to the relevant factors, its decision should not be overturned. We move then to the Commission's report.
14
The Commission found that in the circumstances presented the switching charge provided by the existing tariff would not be unreasonable or otherwise unlawful as applied to livestock, and secondly, that the establishment of joint rates for such transportation was not necessary or desirable in the public interest. It took account of the historical development of the Stock Yards and the delivery of livestock therein which together with the industrial development of the area have made further yard expansion impracticable. The Commission found that the switching yards are now highly congested and, as one witness put it, are 'running bank full.' While it is true that livestock shipments into the area have been decreasing, dead-freight shipments have increased several fold, and the congestion will continue in the foreseeable future. The Commission gave careful consideration to the complication of operations through the additional and different switching movements required in the handling of livestock as contrasted with dead freight. Whether the system for the delivery of livestock into Chicago which has existed for over seventy years at an established line-haul rate, and which has recognized definite terminals calling for a minimum of train movements in a highly congested area, should be displaced by another system which would further complicate the operations and would necessitate the use of properties and services not included when the present line-haul rates and terminals were fixed, is a question committed to the administrative judgment of the Commission. When that judgment is based on findings abundantly supported by the evidence on the whole record, as it is in this case, it is the duty of the courts to sustain it. Ayrshire Collieries Corp. v. United States, 335 U.S. 573, 593, 69 S.Ct. 278, 289, 93 L.Ed. 243; Interstate Commerce Commission v. Jersey City, 322 U.S. 503, 522—523, 64 S.Ct. 1129, 1138, 88 L.Ed. 1420; Swift & Co. v. United States, 316 U.S. 216, 230—231, 62 S.Ct. 948, 955, 86 L.Ed. 1391; Adams v. Mills, 286 U.S. 397, 409—410, 52 S.Ct. 589, 592, 76 L.Ed. 1184; Interstate Commerce Commission v. Union Pacific R. Co., 222 U.S. 541, 547—548, 32 S.Ct. 108, 110 111, 56 L.Ed. 308.
15
The question of the reasonableness of the switching charge was posed to the Commission in the case of Hygrade Food Products Corp. v. Atchison, T. & S.F.R. Co., 195 I.C.C. 553. There, Hygrade sought to have the railroads absorb the switching charge of Junction, but the Commission found that it was a reasonable additional charge to the line-haul rate. On appeal to this Court that finding was not disturbed. Atchison, T. & S.F.R. Co. v. United States, 295 U.S. 193, 55 S.Ct. 748, 79 L.Ed. 1382. At that time the charge was $12 per car. It is now considerably higher, but the charges for other commodities and services have risen also.
16
The burden of showing that the switching charges were unreasonable was upon Swift. Louisville & N.R. Co. v. United States, 238 U.S. 1, 11, 35 S.Ct. 696, 698, 59 L.Ed. 1177. On this record, that burden was not sustained; the charges having existed for years and having been approved as reasonable by the Commission and tacitly approved by this Court, Atchison, T. & S.F.R. Co. v. United States, supra, their reasonableness is presumed to continue in the absence of a showing to the contrary.
17
The fact that the rate is so high that Swift finds it uneconomical to use does not in and of itself establish the unreasonableness of the rate. A revision of the switching charge on the ground of its unreasonableness and the establishment of a reasonable rate for switching was not asked. Any rate in excess of the line-haul rate to the Stock Yards was considered by Swift as unreasonable, as it was demanding a joint rate not in excess of the line-haul rate to the Stock Yards. Unreasonableness is not made out by mere assertion. Federal Power Comm. v. Hope Natural Gas Co., 320 U.S. 591, 602, 64 S.Ct. 281, 287, 88 L.Ed. 333.
18
It is next argued that because dead freight is delivered to Swift's industrial siding at the line-haul rate, it is a discrimination against livestock as a commodity to impose a switching charge in addition to the line-haul rate for delivery of livestock to the same point. That argument is completely answered by the Commission's findings as to the different and more complex nature of the switching services required by livestock as compared with dead freight. The cost of the Switching service performed by Junction in the delivery of dead freight is figured in the line-haul rate. The line-haul rate for livestock, the reasonableness of which is not in and of itself attacked here, has never contemplated such switching services because Junction has never performed them.
19
Reliance is placed by Swift upon the case of United States v. Baltimore & O.R. Co., 333 U.S. 169, 68 S.Ct. 494, 92 L.Ed. 618. There, delivery to industrial sidings at line-haul rates had been the practice. The Cleveland Stock Yards sought to terminate such delivery because it owned a segment of the track used to serve Swift and wanted to prevent the use thereof unless livestock be routed through its yards and the charge therefor paid to the Stock Yards. In the alternative, the Stock Yards wanted the carriers to pay the equivalent of such charge for the use of the Stock Yards' track leading to Swift's industrial siding. Such a plan would have discriminated against Swift because its competitors could get delivery without the use of the Stock Yards' track and hence would be unaffected by the Stock Yards' demands. This Court held that the Stock Yards could not use its track ownership to work a discrimination which Congress had said should not exist.
20
'Here Congress under its constitutional authority has provided that no railroad shall engage in certain types of discriminatory conduct in violation of three provisions of the Act. The Commission found that discriminatory conduct here. The excuse offered by the railroads is that the owner of Track 1619 required them to do the prohibited things. But the command of Congress against discrimination cannot be subordinated to the command of a track owner that a railroad using the track practice discrimination.' Id., 333 U.S. at page 177, 68 S.Ct. at page 498.
21
Delivery to an industrial siding at line-haul rates was there allowed by the Commission and sustained by this Court for the reason that the Stock Yards sought by its discriminatory act to upset the usual delivery procedure, while here, in a vastly more complicated operational setting, Swift would complicate it further by obtaining for itself a service at line-haul rates different from the usual delivery procedure and not contemplated or considered when the present line-haul rates to Chicago were fixed. If Swift were granted the relief it seeks here, it would be obtaining something that no other packer in Chicago receives, and, instead of being discriminated against, a discrimination would be granted in its favor. Swift already enjoys a competitive advantage because it can obtain direct delivery of livestock at its Omaha plant at line-haul rates. It can hardly be heard to say that the present system favors its competitors in the Stock Yards' area.
22
Swift also failed in its burden of showing prejudicial treatment to it as opposed to its competitors in localities other than Chicago, who do receive delivery on industrial sidings at line-haul rates. These competitors' plants are located for the most part on line-haul carriers' rails, and no complicated switching movements are involved. Swift receives at Chicago, as elsewhere, the same rates and services as other packers similarly situated.
23
Junction is a subsidiary of the New York Central Railroad Company. The latter had an agreement with the Stock Yards which contained a provision that New York Central would operate Junction for 'the benefit, advantage and behoof of the business and affairs' of the Stock Yards. When this proceeding was begun before the Commission, Junction did not intend to defend it. Attorneys for the Stock Yards wrote a letter to the general counsel of New York Central, calling attention to the failure of Junction to defend and to the covenant in the agreement. They pointed out that Junction possessed the evidence necessary to meet the issue in Swift's complaint, that such evidence should be adduced, and that under the agreement, Junction was obligated to defend in order to avoid irreparable injury to the Stock Yards. Thereafter, Junction defended.
24
It is Swift's contention that this covenant is illegal. We do not find it necessary to pass upon that matter. As far as Swift is concerned, it does not receive any direct shipments at the Stock Yards; hence any decision as to livestock shipments to Swift would not affect the Stock Yards. If other packers would demand industrial siding delivery in the event Swift's complaint were allowed, unquestionably the effect upon the Stock Yards would be very material.
25
It is true that the Commission did give consideration to the probability that if Swift were successful, other packers might demand the same service. The likelihood of such demand seemed to the Commission, as it does to us, obvious. However, if this demand by other packers, reasonably forecast by the Commission, received consideration in reaching the conclusions in this case, it was in the light of the additional burden on the overcrowded condition of the area, the complexity of the operations, and the necessity for extra care in the handling of livestock to move it through the bottleneck at the Ashland Yards. The Commission was not led to such conclusions by giving weight to this covenant. It was wholly unnecessary thereto. The covenant's impact may be consistent with such consideration, but it is not shown to have been controlling in any manner, or relied upon by the Commission.
26
We have given consideration to other arguments put forth by Swift and find them to be equally without merit; they do not require discussion in this opinion.
27
The judgment of the District Court is affirmed.
28
Affirmed.
29
Mr. Justice REED, with whom Mr. Justice DOUGLAS joins, dissenting.
30
I am not able to accept the conclusion of the majority that the Interstate Commerce Commission can on this record deny the appellant's prayer for joint through rates between the line-haul defendants and the terminal defendant, the Chicago Junction Railroad. It is admitted here that every manner of freight save livestock is delivered to private industrial sidings in the Chicago switching district under tariffs embracing joint through rates. When the Court concludes that it is not a 'discrimination against livestock as a commodity to impose a switching charge in addition to the line-haul rate for delivery of livestock to the same point,' it violates the statutory requirement of equality between commodities. To accord joint through rates for switching to private sidetracks to all commodities save livestock, constitutes such a preference to those commodities over livestock as is proscribed by 49 U.S.C. § 3(1), 49 U.S.C.A. § 3(1). See note 2 of the opinion of the Court.
31
It is the law under the Interstate Commerce Act, as set out in § 3(1), that the public interest is best served when common carriers accord equally reasonable treatment to all their patrons. To be sure, the law might be that the public interest is best served by avoiding congestion in order to pass the maximum amounts of traffic through a transportation bottleneck. But Congress has decided, both for the Commission and this Court, that the commonweal shall be served by guaranteeing that there shall not be discrimination between commodities by carriers. The difficulties of congestion, limitations on facilities or other shipping disadvantages are to be borne equally by all shippers, otherwise the Interstate Commerce Commission could unreasonably prefer commodities through transportation orders, and in effect would be authorized to prescribe the manner in which goods shall be marketed in the public interest. The inadequacy of transportation facilities may not, in my opinion, be cured by penalizing one commodity for the benefit of the others.
32
When, as here, the carriers while fixing joint through rates for commodities in general fail to furnish them to shippers of livestock, on application the Commission should fix such rate. That rate should be established, 49 U.S.C. § 15(3), 49 U.S.C.A. § 15(3), in the same manner as similar rates for other commodities, of course with proper consideration of the costs of handling the respective commodities. I consider it no answer on this record to say that the switching charge may be no more than the difference in cost of handling dead freight and livestock. The shipper is entitled to meet that problem when the Commission comes to determine the switching factor in the joint through rate. Joint through rates should be accorded to livestock shipments on Swift's siding. Then, and not until then, if the rate is attacked as unreasonable, may the Court properly rely on the fact, if supported by a finding of the Interstate Commerce Commission, that the 'more complex nature of the switching services required by livestock as compared with dead freight' makes justifiable the difference in the rates. See majority opinion, 72 S.Ct. 722. The reasonableness of any commission increase of livestock rates over other commodities should depend upon evidence and findings showing its necessity because of the extra cost of handling without regard to congestion.
33
I would reverse.
34
Mr. Justice FRANKFURTER, dissenting.
35
The conflicting views of my brethren imply serious differences in interpreting the meaning and scope of the report of the Interstate Commerce Commission. Plainly, therefore, that report does not speak with the needed clarity. Therein lies my difficulty with the case. If what the Commission has done is ambiguous, how can I decide whether it was authorized to do what it did? Dubiety in the administrative order precludes intelligible judicial review.
36
As the Court views the matter, the Commission had before it merely a rate-fixing controversy and more specifically whether relevant transportation considerations justified imposition of a local switching charge of 4.8 cents per 100 pounds1 in combination with the line-haul charge as a fair rate for delivery of livestock to private sidings. And the record, according to the Court, amply sustains the finding of the Commission that such a combination did not constitute an unreasonable rate. Mr. Justice REED and Mr. Justice DOUGLAS interpret the order not to be a rate-fixing order at all, but, in effect, a determination by the Interstate Commerce Commission that livestock, unlike all other Commodities, may be excluded from private sidings in the stockyards area, although this is done not in terms but by a designedly preferential rate. The difficulty is, of course, intensified in that the rate is in fact prohibitive.
37
Where, as here, this Court can draw only conflicting strands of reason from the explanation given by the Interstate Commerce Commission, we have not been spoken to with sufficient clearness. 'We must know what a decision means before the duty becomes ours to say whether it is right or wrong.' United States v. Chicago, M., St. P. & P.R. Co., 294 U.S. 500, 511, 55 S.Ct. 462, 467, 79 L.Ed. 1023. Therefore, I think the decision below should be reversed with direction to remand the case to the Interstate Commerce Commission for appropriate action.
1
The term 'direct shipments' is used to denote shipments consigned directly to the packer for slaughter, as distinguished from those shipments consigned to commission men for sale in the public livestock market.
2
49 U.S.C. § 1 et seq., 49 U.S.C.A. § 1 et seq. Sections 1(4) and 1(5) require the carriers to establish just and reasonable rates; § 3(1) prohibits the carriers from giving any undue or unreasonable preference to any particular shipper or to any particular description of traffic.
3
A line-haul carrier is a common carrier by railroad which transports livestock and other freight in interstate traffic, as distinguished from a carrier such as Junction, which performs services in a local switching area.
4
The cost of this trucking to Swift is $50,000; it is much less than the cost of either consigning the livestock to the Stock Yards and paying for their yardage facilities or paying the switching charges here in issue and having the livestock delivered to the proposed plant.
5
Dead freight is composed of commodities other than livestock.
6
This was the figure at the time this proceeding was heard by the Commission's examiner. Subsequent authorized increases have brought the charge to $39.24.
7
During the years 1945, 1946 and 1947, an average of over 726,000 cars a year, loaded any empty, were funnelled through the Ashland Yards.
1
This rate, in effect when the hearing was held, was based on a minimum of 60,000 pounds.
| 78
|
343 U.S. 393
72 S.Ct. 859
96 L.Ed. 1026
DIXONv.DUFFY.
No. 79.
Decided May 12, 1952.
PER CURIAM.
1
On November 5, 1951, we ordered this cause 'continued for such period as will enable counsel for petitioner to secure a determination from the Supreme Court of California as to whether the judgment herein was intended to rest on an adequate independent state ground or whether decision of the federal claim was necessary to the judgment rendered.' 1951, 342 U.S. 33, 34, 72 S.Ct. 10, 11.
2
We have not yet been advised whether the Supreme Court of California has conducted any further proceedings in this case or has so entered as to become a part of the record, any order, opinion or certificate after November 5, 1951. We do not regard a letter, not apparently a part of the case record, received by the Clerk of this Court on March 31, 1952, signed by the Clerk of the Supreme Court of California as a sufficient 'determination' of the question raised in our order of November 5, 1951.
3
Accordingly, the cause is ordered further continued for such period as will enable counsel for petitioner to secure from the Supreme Court of California its official determination as requested in our order of November 5, 1951.
4
Cause continued.
5
Mr. Justice DOUGLAS, being of the opinion that the federal question in the case has been fully exposed, dissents.
6
Mr. Justice MINTON took no part in the consideration or decision of this case.
| 89
|
343 U.S. 390
72 S.Ct. 842
96 L.Ed. 1022
PALMER OIL CORP. et al.v.AMERADA PETROLEUM CORP. et al. FARWELL et al. v. AMERADA PETROLEUM CORP. et al.
Nos. 301, 302.
Argued April 25, 1952.
Decided May 12, 1952.
Mr. Mark H. Adams, Wichita, Kan., for Palmer Oil Corp. and others.
Mr. Reford Bond, Jr., Chickasha, Okl., for Farwell and others.
Mr. R. M. Williams, Oklahoma City, Okl., for Amerada Petroleum Corp. and others.
PER CURIAM.
1
These two appeals challenge the constitutionality of Okla.Stat. 1941 (Cum.Supp.1949) Tit. 52, §§ 286.1—286.17, providing for unitized management of common sources of supply of oil and gas in Oklahoma. This statute was repealed by the Oklahoma Legislature on May 26, 1951, Okl.Laws 1951, c. 3a, § 16, p. 142, and we ordered the causes continued in order to determine the effect of this repeal on the matters raised in these appeals. 1951, 342 U.S. 35, 72 S.Ct. 11. After being advised by the Supreme Court of Oklahoma that this repeal had no effect on these causes, we noted probable jurisdiction and heard argument.
2
Appellants contend that this statute and an order issued thereunder by the Oklahoma Corporation Commission impair their contractual rights in violation of U.S.Const., Art. 1, § 10, and amount to a denial of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Specifically, appellants argue that the statute is an unreasonable exercise of the State's police power and an unreasonable delegation of legislative and judicial power to private groups. In addition, appellants maintain that the statute is too vague and indefinite to furnish the Commission with any reasonable guide for the issuance of orders approving unitization plans, and that the evidence does not support the Commission's findings of fact.
3
In the light of our previous decisions, appellants have failed to raise any substantial federal questions and the appeals are therefore dismissed. Cities Service Gas Co. v. Peerless Oil & Gas Co., 1950, 340 U.S. 179, 71 S.Ct. 215, 95 L.Ed. 190; Railroad Commission of Texas v. Rowan & Nichols Oil Co., 1941, 311 U.S. 570, 61 S.Ct. 343, 85 L.Ed. 358; Railroad Commission of Texas v. Rowan & Nichols Oil Co., 310 U.S. 573, 60 S.Ct. 1021, 84 L.Ed. 1368, as amended, 1940, 311 U.S. 614, 615, 61 S.Ct. 66, 85 L.Ed. 390; Patterson v. Stanolind Oil & Gas Co., 1939, 305 U.S. 376, 59 S.Ct. 259, 83 L.Ed. 321; Home Building & Loan Association v. Blaisdell, 1934, 290 U.S. 398, 435, 436, 437, 54 S.Ct. 231, 239, 240, 78 L.Ed. 413; Champlin Refining Co. v. Corporation Commission, 1932, 286 U.S. 210, 52 S.Ct. 559, 76 L.Ed. 1062.
4
Dismissed.
| 89
|
343 U.S. 427
72 S.Ct. 849
96 L.Ed. 1051
JOHANSENv.UNITED STATES. MANDEL v. UNITED STATES.
Nos. 401, 414.
Argued March 4, 5, 1952.
Decided May 26, 1952.
Rehearing Denied Oct. 13, 1952.
See 73 S.Ct. 5.
Mr. Louis R. Harolds, New York City, for petitioner Johansen.
Mr. Abraham E. Freedman, Philadelphia, Pa., for petitioner Mandel.
Mr. Leavenworth Colby, Washington, D.C., for respondents.
Mr. Justice REED delivered the opinion of the Court.
1
These cases present the question whether Congress, in enacting the Public Vessels Act of 1925, 43 Stat. 1112, 46 U.S.C. § 781 et seq., 46 U.S.C.A. § 781 et seq., has consented that the United States be sued for 'damages' by or on behalf of members of the civil service component of the crew of military transport vessels. We hold that the benefits available to such seamen under the Federal Employees' Compensation Act of 1916, 39 Stat. 742, 5 U.S.C. § 751 et seq., 5 U.S.C.A. § 751 et seq., are of such a nature as to preclude a suit for damages under the Public Vessels Act.
2
Petitioner Johansen, in No. 401, and petitioner Mandel's decedent, in No. 414, were at the time of their injuries employed as civilian members of the crews of Army Transport vessels, owned and operated by the United States. For purposes of this review it is clear that these vessels were at that time being used as 'public vessels,' not 'merchant vessels,'1 and that therefore petitioners have no remedy by way of a suit for damages under the Suits in Admiralty Act of 1920, 41 Stat. 525, 46 U.S.C. § 742, 46 U.S.C.A. § 742. Both seamen were injured in the performance of their duties; petitioners were therefore concededly eligible for benefits under the Federal Employees Compensation Act of 1916. Both allege that the injuries resulted from the negligence of respondent, and petitioner Johansen further relies upon the alleged unseaworthiness of his vessel. The relief sought by petitioner Johansen is 'damages, wages, maintenance and cure'; that sought by petitioner Mandel is 'damages' for wrongful death.
3
Petitioner Johansen was a carpenter in the crew of the transport Kingsport Victory. On August 5, 1949, he sustained a lacerated leg in the course of his duties aboard the vessel, which was lying at a pier at the Bethlehem Shipyard, Brooklyn, New York. He was treated at the Marine Hospital until October 24, 1949, as a beneficiary of the Bureau of Employees Compensation. He filed a claim for compensation benefits under the Federal Employees Compensation Act, and collected a total of $358.20. On February 6, 1950, he filed this libel in admiralty in the District Court, relying upon the Public Vessels Act. The libel was dismissed, and, with one judge dissenting, the Second Circuit affirmed, 191 F.2d 162, on the ground that the Federal Employees Compensation Act afforded petitioner his exclusive remedy. The Court recognized that its decision conflicted on this point with a decision of the Fourth Circuit, Johnson v. United States, 186 F.2d 120.
4
Petitioner Mandel's decedent was an assistant engineer on a tug operated and controlled by the United States Army and assigned to the Mediterranean Theater of Operations during World War II. On October 15, 1944, the tug was destroyed by a mine, in attempting to enter the port of Cagliari, Sardinia. In this disaster, decedent met his death in the presence of the enemy. Decedent's widow procured the appointment of an administrator who brought this suit for $150,000. The District Court overruled the Government's motion to dismiss, based partly on the claim that the Federal Employees Compensation Act is the exclusive remedy for the accident. During pretrial, when the Government refused to produce certain documentary evidence called for, the court entered an interlocutory decree of default against respondent. On appeal, pursuant to 28 U.S.C. § 1292(3), the Third Circuit reversed. 191 F.2d 164. It limited its consideration to the defense based on the Compensation Act. Recognizing conflict with the decision of the Fourth Circuit in United States v. Marine, 4 Cir., 155 F.2d 456, as well as Johnson v. United States, supra, that court nevertheless agreed with the Second Circuit, and held that the Federal Employees Compensation Act precluded recovery under the Public Vessels Act. To resolve the apparent conflict between these decisions, this Court granted certiorari. 342 U.S. 901, 72 S.Ct. 292; 342 U.S. 901, 72 S.Ct. 293.
5
Section 1 of the Public Vessels Act of 1925 provides 'That a libel in personam in admiralty may be brought against the United States * * * for damages caused by a public vessel of the United States * * *.' We have already held that this Act grants consent to be sued for personal injuries suffered by an individual not employed by the United States, caused by the negligent maintenance or operation of a public vessel of the United States. American Stevedores, Inc. v. Porello, 330 U.S. 446, 67 S.Ct. 847, 91 L.Ed. 1011, cf. Canadian Aviator, Ltd. v. United States, 324 U.S. 215, 65 S.Ct. 639, 89 L.Ed. 901. If the congressional purpose was to allow damages for personal injuries sustained by federal employees while in the performance of duty, the literal language of the Act would allow actions of the nature of those before us.
6
This general language, however, must be read in the light of the central purpose of the Act, as derived from the legislative history of the Act and the surrounding circumstances of its enactment. The history of the Act has already been set forth in some detail in the Porello and Canadian Aviator cases cited above. It is sufficient here to recall that this Act was one of a number of statutes which attest 'to the growing feeling of Congress that the United States should put aside its sovereign armor in cases where federal employees have tortiously caused personal injury or property damage.' 330 U.S., at page 453, 67 S.Ct. at page 851. These enactments were not usually directed toward cases where the United States had already put aside its sovereign armor, granting relief in other forms. With such a legislative history, one hesitates to reach a conclusion as to the meaning of the Act by adoption of a possible interpretation through a literal application of the words. Nor is the legislative history of the Act helpful. We are cited to no evidence that any member of Congress in 1925 contemplated that this Act might be thought to confer additional rights on claimants entitled to the benefits of the Federal Employees Compensation Act of 1916. Surely the lack of such evidence is not helpful to petitioners' case; the most that can be said of it is that Congress did not specifically exclude such claimants from the coverage of the Public Vessels Act.
7
Under these circumstances, it is the duty of this Court to attempt to fit the Public Vessels Act, as intelligently and fairly as possible, 'into the entire statutory system of remedies against the Government to make a workable, consistent and equitable whole.' Feres v. United States, 340 U.S. 135, 139, 71 S.Ct. 153, 156, 95 L.Ed. 152. It is important, then, to examine briefly the other statutes which are a part of the system of remedies against the Government available to seamen for personal injuries.
8
In 1916 Congress passed both the Shipping Act, 39 Stat. 728, 46 U.S.C. § 801 et seq., 46 U.S.C.A. § 801 et seq., and the Federal Employees Compensation Act. The former subjected Government vessels, employed solely as merchant vessels, to all laws, regulations and liabilities governing private merchant vessels, if they were purchased, chartered, or leased from the Shipping Board. Thus a remedy for damages for personal injuries was given to merchant seamen on ships in which the Government had an interest, but not to public vessel seamen. Cf. The G. A. Flagg, D.C., 256 F. 852.
9
In the latter Act Congress undertook to provide a comprehensive compensation system for federal employees who sustain injuries in the performance of their duty. The payment of this compensation, subject to the provisions of the Act, is mandatory, for § 1 provides: 'That the United States shall pay compensation as hereinafter specified for the disability or death of an employee resulting from a personal injury sustained while in the performance of his duty * * *.' Section 7 provides 'That as long as the employee is in receipt of compensation under this Act, * * * he shall not receive from the United States any salary, pay, or remuneration whatsoever except in return for services actually performed, and except pensions for service in the Army or Navy of the United States.' Section 8, however, recognized the conflict between that provision and the employee's possible right to paid sick or annual leave, and required the employee to elect between compensation and such paid leave. The Act made no other provision for election at that time. Later it was amended by the Public Health Service Act of 1944 to provide generally for election between compensation and any other payments from the United States to which the employee may be entitled by reason of his injury under any other Act of Congress because of his service as an employee of the United States. 58 Stat. 712. The 1944 amendment thus consolidated the various election provisions of the Civil Service Retirement Act of 1920, 5 U.S.C. § 714, 5 U.S.C.A. § 714 and other special disability retirement and pension legislation. E.g., 5 U.S.C. § 797, 5 U.S.C.A. § 797; 10 U.S.C. § 1711, 10 U.S.C.A. § 1711; 14 U.S.C. §§ 311—312, 386, 14 U.S.C.A. §§ 311, 312, 386; 34 U.S.C. §§ 855c, 857e, 34 U.S.C.A. §§ 855c, 857e; 50 U.S.C. Appendix, § 1552, 50 U.S.C.A. Appendix, § 1552. A further amendment in 1949 will be discussed below. Aside from these, there has never been any provision in the Compensation Act for election between compensation and other remedies. It is quite understandable that Congress did not specifically declare that the Compensation Act was exclusive of all other remedies. At the time of tis enactment, it was the sole statutory avenue to recover from the Government for tortious injuries received in Government employment. Actually it was the only, and therefore the exclusive, remedy. See Johnson v. United States, 4 Cir., 186 F.2d 120, 123.
10
In 1920, the Suits in Admiralty Act, 41 Stat. 525, 46 U.S.C. § 742, 46 U.S.C.A. § 742, gave a broad remedy to seamen on United States merchant vessels but did not extend these benefits to seamen on public vessels. An extension of this nature was proposed, but defeated. See Canadian Aviator, Ltd. v. United States, 324 U.S. 215, 220—221, 65 S.Ct. 639, 642—643, 89 L.Ed. 901.
11
Next in the series was the Public Vessels Act of 1925, on which petitioners rely. So far as pertinent here, that Act simply provided that a libel might be brought against the United States for damages caused by a public vessel of the United States. No provision was made for election between this remedy and any remedies that might be available under other federal statutes. There is no indication that Congress recognized that this problem might arise.
12
In 1943 the Clarification Act, 57 Stat. 45, 50 U.S.C.Appendix, § 1291, 50 U.S.C.A.Appendix, § 1291, extended the remedies available to seamen on privately owned American vessels to seamen employed on United States vessels 'as employees of the United States through the War Shipping Administration'. Claims arising under this Act were to be enforced pursuant to the Suits in Admiralty Act of 1920, even though the vessel on which the seaman was employed might not be a 'merchant vessel' within the meaning of the Suits in Admiralty Act. It was specifically provided, however, that this remedy under the Clarification Act was to be exclusive of any remedies that might otherwise be available under the Federal Employees Compensation Act, the Civil Service Retirement Act, and other similar acts. The Act thus gave effect to a congressional purpose to treat seamen employed through the War Shipping Administration as 'merchant seamen,' not as 'public vessel seamen.' See Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 792, 69 S.Ct. 1317, 1322, 93 L.Ed. 1692, quoting from H.R.Rep. No. 107, 78th Cong., 1st Sess. The Act did not purport to change the status of publicvessel seamen not employed through the War Shipping Administration.
13
This was the situation prior to the 1949 amendments to the Federal Employees Compensation Act. Merchant seamen, other than those employed by the War Shipping Administration, on ships owned by the United States had a right to libel the United States pursuant to the Suits in Admiralty Act of 1920, but whether they were entitled to the benefits of the Compensation Act was doubtful. See Comptroller General's Decision A—31684, Sept. 10, 1930; 34 Op.Atty.Gen. 363; Johnson v. United States Shipping Board Emergency Fleet Corporation, 280 U.S. 320, 50 S.Ct. 118, 74 L.Ed. 451. Seamen employed through the War Shipping Administration were by the Clarification Act to be treated as merchant seamen, whether they were serving on merchant vessels or public vessels. As public-vessel seamen injured other than in the course of duty are not covered by the Compensation Act they would presumably have had the same rights to recovery as the public generally under the Public Vessels Act. Public-vessel seamen injured in the course of duty were entitled to all the benefits of the Federal Employees Compensation Act. The issue in this case is whether this last group of Government-employed seamen is eligible under both schemes of recovery.
14
It is argued by petitioners that the 1949 amendments to the Compensation Act, 63 Stat. 854, show that Congress understood that the remedy of compensation had not been, until that time, exclusive of other remedies, and that the remedy of compensation for seamen still does not preclude recovery under the Public Vessels Act. These amendments added a new subsection2 to § 7 of the Compensation Act of 1916 to provide clearly that the liability of the United States under the Compensation Act shall be exclusive of all other liability of the United States on account of the same injury. This amendment, however, was not to alter the rights of seamen in any way.3 Petitioners argue that Congress in 1949 was seeking, for the first time, to establish the exclusive nature of the remedy of compensation, and deliberately omitted seamen from this limitation. The background of the amendment shows, however, that this impression is erroneous. Prior to 1949, there was a divergence of view in the courts as to the exclusiveness vel non of the remedy of compensation.4 This uncertainty extended to suits by Government seamen seeking damages under the Public Vessels Act.5 The purpose of the 1949 amendment is simply 'to make it clear that the right to compensation benefits under the act is exclusive and in place of any and all other legal liability of the United States or its instrumentalities * * *.' S.Rep.No. 836, 81st Cong., 1st Sess., p. 23. This clarifying amendment, as reported out of the Senate Committee on Labor and Public Welfare, lacked the proviso protecting the rights, if any, of seamen under other federal statutes. However, no seamen's groups having participated in the hearings on the bill, Senator Morse proposed on the floor the proviso on which petitioners rely. Senator Morse himself recognized that his amendment did no more than preserve to seamen any rights which they might have in addition to compensation. There is language in his statement indicating that he was of the opinion that seamen employees had a choice between compensation and litigation in admiralty. 95 Cong.Rec. 13608, 13609. Senator Douglas, who was in charge of the bill, accepted these amendments for the reason that the seamen's groups had not been heard before the committee of Congress. He stated:
15
'Mr. President, I should like to state my ground for agreeing to the amendments offered by the Senator from Oregon (Mr. Morse). The primary consideration for accepting the Senator's amendments preserving the maritime rights and other statutory remedies of seamen is the fact that no hearings were held, no arguments were heard, and no discussion was had on this aspect of the pending bill. * * * For the same reason, namely, that we have had no hearings on the matter, we are not seeking to legislate affirmatively as to certain claims and denials of a right of election of remedies under existing laws, which claims and denials have not yet been adjudicated by the Supreme Court, although various other Federal courts have, in effect, held that federally employed seamen have such an election.
16
'In short, until the matter may be more fully considered by Congress, we seek by the amendments merely to make sure that seamen shall lose no existing rights.' 95 Cong.Rec. 13609.
17
As thus recommended, the bill passed the Senate, 95 Cong.Rec. 13609, and a week later the House accepted the Senate amendments without debate. 95 Cong.Rec. 14060. This background makes it clear that the 1949 amendments, far from changing the law respecting seamen's remedies, do not even reflect a belief on the part of Congress that the remedy of compensation is not exclusive. There is nothing in these amendments to affect consideration of whether petitioners' sole remedy is under the Federal Employees Compensation Act. Cf. Johnson v. United States, 4 Cir., 186 F.2d 120, 123. If the remedy of compensation was exclusive prior to the passage of the 1949 amendment, it is exclusive now.
18
As indicated above, the courts have differed upon the question of exclusiveness of the remedy against the United States under the Federal Employees Compensation Act. This Court in Dahn v. Davis, 258 U.S. 421, 42 S.Ct. 320, 66 L.Ed. 969, held that a railway mail clerk, injured in a wreck on the railroad, while it was operated under the Federal Control Act of 1918, 40 Stat. 451, was barred from prosecuting a suit against the U.S. Director General because he had previously elected to accept payment under the Federal Employees Compensation Act. The judgment of the United States Court of Appeals for the Eighth Circuit, Hines v. Dahn, 267 F. 105, was affirmed here on the ground that where the employee had two remedies, each for the same wrong, and both against the United States, he could not pursue one remedy to a conclusion and then seek 'a second satisfaction of the same wrong'. 258 U.S. at page 429, 42 S.Ct. at page 321. The holding was thus based on the doctrine of election of remedies, but if the language is thought to allow the choice of an action against the Government for damages, it is to be noted that Government liability in that case depended upon § 10 of the Federal Control Act, permitting suits against carriers 'as now provided by law', and General Order No. 50 directing that any proceeding which 'but for federal control might have been brought against the carrier company, shall be brought against (the) Director General * * * and not otherwise'.6 There was therefore in the Dahn case legislation directly substituting the United States for the carriers in all litigation. Thus the carriers' business was conducted deliberately by the Government with as little change as possible for the situation when carriers controlled. Here the United States operates its own public vessels, without any such conformity legislation. As such operator it has established by the Compensation Act a method of redress for employees. There is no reason to have two systems of redress.7 See also United States v. Marine, 4 Cir., 155 F.2d 456, a case allowing recovery to a civilian employee of the Government under the Suits in Admiralty Act, and Johnson v. United States, 4 Cir., 186 F.2d 120, which allowed a recovery under the Public Vessels Act to a civilian seaman on a public vessel. The opinions below in the cases we are considering take the opposite and we think, the better view.
19
The Federal Employees Compensation Act, 5 U.S.C. § 751 et seq., 5 U.S.C.A. § 751 et seq., was enacted to provide for injuries to Government employees in the performance of their duties. It covers all employees. Enacted in 1916, it gave the first and exclusive right to Government employees for compensation, in any form, from the United States. It was a legislative breach in the wall of sovereign immunity to damage claims and it brought to Government employees the benefits of the socially desirable rule that society should share with the injured employee the costs of accidents incurred in the course of employment. Its benefits have been expanded over the years. See 5 U.S.C. (Supp. III) § 751 et seq., 5 U.S.C.A. § 751 et seq. Such a comprehensive plan for waiver of sovereign immunity, in the absence of specific exceptions, would naturally be regarded as exclusive. See United States v. Shaw, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888. Such a position does not run counter to the progressive liberalization of the right to sue the United States or its agencies for wrongs.8 This Court accepted the principle of the exclusive character of federal plans for compensation in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152. Seeking so to apply the Tort Claims Act to soldiers on active duty as 'to make a workable, consistent and equitable whole', 340 U.S. at page 139, 71 S.Ct. at page 156, we gave weight to the character of the federal 'systems of simple, certain, and uniform compensation for injuries or death of those in armed services.' 340 U.S. at page 144, 71 S.Ct. at page 158. Much the same reasoning leads us to our conclusion that the Compensation Act is exclusive.
20
Had Congress intended to give a crew member on a public vessel a right of recovery for damages against the Government beyond the rights granted other Government employees on the same vessel under other plans for compensation, we think that this advantage would have been specifically provided.9 As the Court of Appeals in the Johansen case explained, the duties and obligations of civilian and military members of the crew of a public vessel are much the same. Each has a general compensation system for injuries. To allow public-vessel seamen an election and to deny it to civilian seamen employed through the War Shipping Administration, 50 U.S.C.Appendix § 1291, 50 U.S.C.A.Appendix, § 1291, would contribute neither to uniformity nor to fairness. See Mandel v. United States, 3 Cir., 191 F.2d 164.
21
All in all we are convinced that the Federal Employees Compensation Act is the exclusive remedy for civilian seamen on public vessels. As the Government has created a comprehensive system to award payments for injuries, it should not be held to have made exceptions to that system without specific legislation to that effect. Both cases are affirmed.
22
Affirmed.
23
Mr. Justice BLACK, with whom The CHIEF JUSTICE, Mr. Justice DOUGLAS and Mr. Justice MINTON concur, dissenting.
24
Petitioner in No. 414 sued the United States under the Public Vessels Act1 to recover damages for the death of Willie Dillehay, Jr., who was killed when the United States public vessel on which he worked struck a mine. Petitioner in No. 401 sued under the same Act to recover for personal injuries he suffered while working aboard another public vessel of the United States. The Court, as it must, concedes that these actions are property brought if the 'literal language'2 of the Public Vessels Act be adhered to. The Court nevertheless decides that petitioners should be denied the benefits accorded by the language of the Act. This holding is premised on the theory that the language Congress used conflicts hopelessly with the purpose Congress sought to achieve. Not being able to establish such a conflict from the Public Vessels Act itself, the Court moves back through the pages of the U.S. Code until it arrives at the Federal Employees Compensation Act.3 Again it can find no language barring petitioners' rights to sue under the Public Vessels Act. However to find such a bar, the Court reasons thusly: The Compensation Act provides for an adequate (probably smaller) recovery in these cases; it is shocking to judicial concepts of symmetry to allow injured persons a choice between two remedies besides 'There is no reason to have two systems of redress'; therefore Congress intended the Compensation Act of 1916 to be exclusive and did not mean what it said nine years later in the Public Vessels Act.
25
The Court's holding is as unique as the reasoning behind it. Time and time again during the last thirty years other federal courts have allowed injured employees to take their pick—receive compensation benefits, or sue for damages under the Public Vessels or some other Act.4 Moreover, the Court gives the Government precisely what Congress, after debate, refused to give in 1949. Government representatives then asked Congress to make the Compensation Act 'exclusive, and in place of all other liability of the United States.' The House yielded to this request. The House Report favoring the change stated that when the Compensation Act was enacted in 1916 a 'provision making the Compensation remedy exclusive apparently was then not deemed by the Congress to be necessary.'5 The Report also stated that such a provision was now needed because of acts such as the Public Vessels Act which 'in general terms' authorize the bringing of damage suits against the Government. The Senate refused to grant the Government's request and prevailed upon the House to accept the present provision of the Act which states that: 'Nothing contained in this Act shall be construed to affect any maritime rights and remedies of a master or member of the crew of any vessel.'6 This Senate modification of the Bill, as it had passed the House, was offered by Senator Morse and accepted by Senator Douglas who was in charge of the bill. In offering this modification, Senator Morse said: 'Under existing law, Government-employed seamen have been accorded the right to assert their maritime rights against the United States under the Suits in Admiralty Act and Public Vessels Act * * *. I feel they should not be deprived of benefits they have enjoyed for many years without opportunity to have their arguments carefully considered by the appropriate committees of the Congress * * *.' 95 Cong.Rec. 13608. Senator Douglas agreed to the modification, stating that 'The primary consideration for accepting the Senator's amendments preserving the maritime rights and other statutory remedies of seamen is the fact that no hearings were held, no arguments were heard, and no discussion was had on this aspect of the pending bill.' 95 Cong.Rec. 13609.
26
I do not think this Court should deprive these seamen of rights which the Congress of 1925 gave them and the Congress of 1949 refused to take away.
1
In No. 401, both parties have agreed throughout these proceedings that the vessel in question was, as indicated by the allegations of the libel, a 'public vessel,' not a 'merchant vessel.'
In No. 414, petitioner alleged in his libel that the vessel in question was a 'merchant vessel.' The District Court was doubtful about this point, but did not decide it, holding that petitioner was entitled to recover whether the vessel was a 'public vessel' or a 'merchant vessel.' In reversing, the Court of Appeals held that (1) if the vessel was a 'public vessel,' petitioner's remedy under the Federal Employees Compensation Act precluded recovery in this action, but (2) if the vessel was a 'merchant vessel,' the case would present different questions, which need not be decided on this record. Accordingly, the case was remanded to the District Court to permit petitioner, if he so desires, to introduce evidence to show that the vessel was a 'merchant vessel.' This Court affirms that mandate. Since petitioner does not specify the second holding as error, we review only the first, and assume for purposes of this review that the vessel was a 'public vessel.'
2
63 Stat. 854:
'Sec. 201. Section 7 of the Federal Employees' Compensation Act, as amended (5 U.S.C., 1946 adition, sec. 757, (5 U.S.C.A. § 757)), is further amended by inserting the designation '(a)' immediately before the first sentence thereof and by adding to such section a new subsection reading as follows:
"(b) The liability of the United States or any of its instrumentalities under this Act or any extension thereof with respect to the injury or death of an employee shall be exclusive, and in place, of all other liability of the United States or such instrumentality to the employee, his legal representative, spouse, dependents, next of kin, and anyone otherwise entitled to recover damages from the United States or such instrumentality, on account of such injury or death, in any direct judicial proceedings in a civil action or in admiralty, or by proceedings, whether administrative or judicial, under any other workmen's compensation law or under any Federal tort liability statute: Provided, however, That this subsection shall not apply to a master or a member of the crew of any vessel."
3
See the proviso of this section, quoted in note 2 above. See also § 305(b) of the 1949 Act: 'Nothing contained in this Act shall be construed to affect any maritime rights and remedies of a master or member of the crew of any vessel.'
4
See Posey v. Tennessee Valley Authority, 5 Cir., 93 F.2d 726; Parr v. United States, 10 Cir., 172 F.2d 462; Thomason v. Works Project Administration, D.C., 47 F.Supp. 51, affirmed 138 F.2d 342; White v. Tennessee Val. Authority, D.C., 58 F.Supp. 776; see also Lewis v. United States, 89 U.S.App.D.C. 21, 190 F.2d 22
5
O'Neal v. United States, D.C., 11 F.2d 869, affirmed 2 Cir., 11 F.2d 871; Lopez v. United States, D.C., 59 F.Supp. 831; United States v. Loyola, 9 Cir., 161 F.2d 126. See Bradey v. United States, 2 Cir., 151 F.2d 742, at page 743 (dictum).
6
Missouri Pac. R. Co. v. Ault, 256 U.S. 554, 562, 41 S.Ct. 593, 596, 65 L.Ed. 1087.
7
It is suggested that Brady v. Roosevelt S.S. Co., 317 U.S. 575, 63 S.Ct. 425, 87 L.Ed. 471, has a bearing on this issue. We think not. There is an assumption that an employee of the United States could have sued the Government for his injury, but the case was one for damages against private operators, not the Government. 317 U.S. at page 577, 63 S.Ct. at page 426. Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 789, 69 S.Ct. 1317, 1321, 93 L.Ed. 1692.
8
Federal Tort Claims Act, 60 Stat. 842; Suits in Admiralty Act, 41 Stat. 525; Public Vessels Act, 43 Stat. 1112. See Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381, 59 S.Ct. 516, 83 L.Ed. 784.
9
Bradey v. United States, 2 Cir., 151 F.2d 742. See Dobson v. United States, 2 Cir., 27 F.2d 807.
1
43 Stat. 1112, 46 U.S.C. § 781 et seq., 46 U.S.C.A. § 781 et seq.
2
Section 1 of the Act provides 'That a libel in personam in admiralty may be brought against the United States * * * for damages caused by a public vessel of the United States * * *.'
3
39 Stat. 742, as amended, 5 U.S.C. (Supp. IV) § 751 et seq., 5 U.S.C.A. § 751 et seq.
4
See e.g., Johnson v. United States, 4 Cir., 186 F.2d 120. In Gibbs v. United States, D.C., 94 F.Supp. 586, 588—589, District Judge Goodman said: 'From a review of court decisions, it can be categorically stated that no federal court decision, other than the case of Posey v. Tennessee Valley Authority, 5 Cir., 1937, 93 F.2d 726, has ever held that the FECA affords the exclusive remedy to federal employees. To the contrary, it has been specifically held that the FECA does not bar suits by federal civilian employees against the Panama Railroad, or against the United States under the Federal Control Act of 1918, under the Suits in Admiralty Act, under the Public Vessels Act and under the Federal Tort Claims Act.' (Footnotes and citations omitted.)
5
H.R.Rep. No. 729, 81st Cong., 1st Sess. 14.
6
63 Stat. 868, § 305(b). In addition § 201(b), which states that the Compensation Act 'shall be exclusive, and in place, of all other liability of the United States', contains the special exception: 'Provided, however, That this subsection shall not apply to a master or a member of the crew of any vessel.' 63 Stat. 861, 862.
| 78
|
343 U.S. 451
72 S.Ct. 813
96 L.Ed. 1068
PUBLIC UTILITIES COMMISSION OF DISTRICT OF COLUMBIA et al.v.POLLAK et al. POLLAK et al. v. PUBLIC UTILITIES COMMISSION OF DISTRICT OF COLUMBIA et al.
Nos. 224, 295.
Argued March 3, 1952.
Decided May 26, 1952.
[Syllabus from pages 451-453 intentionally omitted]
Mr. W. Theodore Pierson, Washington, D.C., for Washington Transit Radio, Inc. and others.
Mr. Paul M. Segal, Washington, D.C., for Pollak and others.
Mr. Justice BURTON delivered the opinion of the Court.
1
The principal question here is whether, in the District of Columbia, the Constitution of the United States precludes a street railway company from receiving and amplifying radio programs through loud speakers in its passenger vehicles under the circumstances of this case. The service and equipment of the company are subject to regulation by the Public Utilities Commission on the District of Columbia. The Commission, after an investigation and public hearings disclosing substantial grounds for doing so, has concluded that the radio service is not inconsistent with public convenience, comfort and safety and 'tends to improve the conditions under which the public ride.' The Commission, accordingly, has permitted the radio service to continue despite vigorous protests from pages 452-454 passengers that to do so violates their constitutional rights. For the reasons hereafter stated, we hold that neither the operation of the service nor the action of the Commission permitting its operation is precluded by the Constitution.
2
The Capital Transit Company, here called Capital Transit, is a privately owned public utility corporation, owning an extensive street railway and bus system which it operates in the District of Columbia under a franchise from Congress.1 Washington Transit Radio, Inc., here called Radio, also is a privately owned corporation doing business in the District of Columbia. Both are petitioners in No. 224.
3
In March, 1948, Capital Transit experimented with 'music as you ride' radio programs received and amplified through loud speakers in a streetcar and in a bus.2 Those vehicles were operated on various lines at various hours. A poll of passengers who heard the programs showed that 92% favored their continuance. Experience in other cities was studied.3 Capital Transit granted Radio the exclusive right to install, maintain, repair and use radio reception equipment in Capital Transit's streetcars, busses, terminal facilities, waiting rooms and division headquarters. Radio, in return, agreed to contract with a broadcasting station for programs to be received during a minimum of eight hours every day, except Sundays. To that end Radio secured the services of Station WWDC—FM. Its programs were to meet the specifications stated in Capital Transit's contract.4 Radio agreed to pay Capital Transit, after a 90-day trial, $6 per month per radio installation, plus additional compensation dependent upon the station's receipts from sources such as commercial advertising on the programs. In February, 1949, when more than 20 installations had been made, the service went into regular operation. At the time of the Commission's hearings, October 27—November 1, 1949, there were 212. On that basis the minimum annual payment to Capital Transit came to $15,264. The potential minimum would be $108,000, based upon 1,500 installations. The contract covered five years, with an automatic five-year renewal in the absence of notice to the contrary from either party.
4
This proceeding began in July, 1949, when the Commission, on its own motion, ordered an investigation. 37 Stat. 983, D.C.Code, 1940, §§ 43—408 through 43—410. The Commission stated that Capital Transit had embarked upon a program of installing radio receivers in its streetcars and busses and that a number of protests against the program had been received. Accordingly, the Commission was ordering an investigation to determine whether the installation and use of such receivers was 'consistent with public convenience, comfort and safety.' Radio was permitted to intervene. Pollak and Martin, as protesting Capital Transit passengers, also intervened and they are the respondents in No. 224.
5
The Commission concluded 'that the installation and use of radios in streetcars and busses of the Capital Transit Company is not inconsistent with public convenience, comfort, and safety' and dismissed its investigation. 81 P.U.R.,N.S., 122, 126. It denied reconsideration. 49 Stat. 882, D.C.Code, 1940, § 43—704. Pollak and Martin appealed to the United States District Court for the District of Columbia. 49 Stat. 882—884, D.C.Code 1940, §§ 43—705 through 43—710. John O'Dea, as People's Counsel, Capital Transit Company and Washington Transit Radio, Inc., were granted leave to intervene. That appeal was dismissed but Pollak and Martin took the case to the Court of Appeals. 49 Stat. 883, D.C.Code 1940, § 43—705. That court partially reversed the judgment of the District Court and gave instructions to vacate the Commission's order. It remanded the case for further proceedings in conformity with its opinion which included the following statement:
6
'In our opinion Transit's broadcasts deprive objecting passengers of liberty without due process of law. Service that violates constitutional rights is not reasonable service. It follows that the Commission erred as a matter of law in finding that Transit's broadcasts are not inconsistent with public convenience, in failing to find that they are unreasonable, and in failing to stop them.
7
'This decision applies to 'commercials' and to 'announcements'. We are not now called upon to decide whether occasional broadcasts of music alone would infringe constitutional rights.' 89 U.S.App.D.C. 94, 191 F.2d 450, 458.
8
The Court of Appeals, en banc, denied a rehearing. The Commission, Capital Transit and Radio petitioned this Court for certiorari in No. 224. Contingent upon the granting of certiorari in that case, Pollak and Martin, by cross-petition in No. 295, sought to prohibit Capital Transit from receiving and amplifying in its vehicles not only 'commercials' and 'announcements,' but also the balance of the radio programs. We granted certiorari in both cases because of the novelty and practical importance to the public of the questions involved. 342 U.S. 848, 72 S.Ct. 77. We have treated the petitions as though they were cross-petitions in a single case.
9
1. Further facts.—In this proceeding the courts are expressly restricted to the facts found by the Commission, insofar as those findings do not appear to be unreasonable, arbitrary or capricious.5
10
After reciting that it had given careful consideration to the testimony bearing on public convenience, comfort and safety, the Commission said that—
11
'From the testimony of record, the conclusion is inescapable that radio reception in streetcars and busses is not an obstacle to safety of operation.
12
'Further, it is evident that public comfort and convenience is not impaired and that, in fact, through the creation of better will among passengers, it tends to improve the conditions under which the public ride.' 81 P.U.R. (N.S.), at 126.
13
Bearing upon its conclusion as to the public comfort and convenience resulting from the radio programs, the Commission cited the opinions of car and bus operators to the effect that the 'music on the vehicles had a tendency to keep the passengers in a better mood, and that it simplified transit operations.' Id., at 125. The Commission also said that its analysis of accidents 'reflects the fact that the radio does not in any way interfere with efficient operation and has not been the cause of any accidents, according to the testimony of * * * a safety supervisor.' Ibid. Likewise, the Commission set forth the following as one premise for its conclusions:
14
'A public opinion survey was conducted by Edward G. Doody & Company, from October 11, 1949, to October 17, 1949, in order to determine the attitude of Capital Transit Company customers toward transit radio. This survey employed the rules of random selection and was confined to interviews aboard radio-equipped vehicles. The principal results obtained through the survey, as presented in this record, were as follows:
15
'Of those interviewed, 93.4 per cent were not opposed; that is, 76.3 were in favor, 13.9 said they didnt' care, and 3.2 said they didn't know; 6.6 per cent were not in favor, but when asked the question 'Well, even though you don't care for such programs personally, would you object if the majority of passengers wanted busses and streetcars equipped with radio receivers,' 3.6 said they would not object or oppose the majority will. Thus, a balance of 3 per cent of those interviewed were firmly opposed to the use of radios in transit vehicles.'6 Ibid.
16
2. Statutory authority.—Apart from the constitutional issues, the order of the Commission dismissing its investigation was in accord with its prescribed statutory procedure and within the discretion properly vested in the Commission by Congress.
17
Transit radio service is a new income-producing incident of the operation of railway properties. The profit arises from the rental of facilities for commercial advertising purposes. This aspect of the enterprise bears some relation to the long-established practice of renting space for visual advertising on the inside and outside of streetcars and busses.
18
Through these programs Capital Transit seeks to improve its public relations. To minimize objection to the advertising features of the programs, it requires that at least 90% of the radio time be used for purposes other than commercials and announcements. This results in programs generally consisting of 90% music, 5% news, weather reports and matters of civic interest and 5% commercial advertising. The advertising is confined to statements of 15 to 30 seconds each. It occupies a total of about three minutes in each hour.
19
In view of the findings and conclusions of the Commission, there can be little doubt that, apart from the constitutional questions here raised, there is no basis for setting aside the Commission's decision. It is within the statutory authority of the Commission to prohibit or to permit and regulate the receipt and amplification of radio programs under such conditions that the total utility service shall not be unsafe, uncomfortable or inconvenient.
20
3. Applicability of the First and Fifth Amendments.—It was held by the court below that the action of Capital Transit in installing and operating the radio receivers, coupled with the action of the Public Utilities Commission in dismissing its own investigation of the practice, sufficiently involved the Federal Government in responsibility for the radio programs to make the First and Fifth Amendments to the Constitution of the United States applicable to this radio service.7 These Amendments concededly apply to and restrict only the Federal Government and not private persons. See Corrigan v. Buckley, 271 U.S. 323, 330, 46 S.Ct. 521, 523, 70 L.Ed. 969; Talton v. Mayes, 163 U.S. 376, 382, 384, 16 S.Ct. 986, 988, 989, 41 L.Ed. 196; Withers v. Buckley, 20 How. 84, 89—91, 15 L.Ed. 816; Barron v. Mayor and City Council of Baltimore, 7 Pet. 243, 8 L.Ed. 672; see also, State of Virginia v. Rives, 100 U.S. 313, 318, 25 L.Ed. 667.
21
We find in the reasoning of the court below a sufficiently close relation between the Federal Government and the radio service to make it necessary for us to consider those Amendments. In finding this relation we do not rely on the mere fact that Capital Transit operates a public utility on the streets of the District of Columbia under authority of Congress. Nor do we rely upon the fact that, by reason of such federal authorization, Capital Transit now enjoys a substantial monopoly of street railway and bus transportation in the District of Columbia. We do, however, recognize that Capital Transit operates its service under the regulatory supervision of the Public Utilities Commission of the District of Columbia which is an agency authorized by Congress.8 We rely particularly upon the fact that that agency, pursuant to protests against the radio program, ordered an 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. 81 P.U.R.(N.S.), at 126.
22
We, therefore, find it appropriate to examine into what restriction, if any, the First and Fifth Amendments place upon the Federal Government under the facts of this case, assuming that the action of Capital Transit in operating the radio service, together with the action of the Commission in permitting such operation, amounts to sufficient Federal Government action to make the First and Fifth Amendments applicable thereto.
23
4. No violation of the First Amendment.—Pollak and Martin contend that the radio programs interfere with their freedom of conversation and that of other passengers by making it necessary for them to compete against the programs in order to be heard. The Commission, however, did not find, and the testimony does not compel a finding, that the programs interfered substantially with the conversation of passengers or with rights of communication constitutionally protected in public places. It is suggested also that the First Amendment guarantees a freedom to listen only to such points of view as the listener wishes to hear. There is no substantial claim that the programs have been used for objectionable propaganda. There is no issue of that kind before us.9 The inclusion in the programs of a few announcements explanatory and commendatory of Capital Transit's own services does not sustain such an objection.
24
5. No violation of the Fifth Amendment.—The court below has emphasized the claim that the radio programs are an invasion of constitutional rights of privacy of the passengers. This claim is that no matter how much Capital Transit may wish to use radio in its vehicles as part of its service to its passengers and as a source of income, no matter how much the great majority of its passengers may desire radio in those vehicles, and however positively the Commission, on substantial evidence, may conclude that such use of radio does not interfere with the convenience, comfort and safety of the service but tends to improve it, yet if one passenger objects to the programs as an invasion of his constitutional right of privacy, the use of radio on the vehicles must be discontinued. This position wrongly assumes that the Fifth Amendment secures to each passenger on a public vehicle regulated by the Federal Government a right of privacy substantially equal to the privacy to which he is entitled in his own home. However complete his right of privacy may be at home, it is substantially limited by the rights of others when its possessor travels on a public thoroughfare or rides in a public conveyance. Streetcars and busses are subject to the immediate control of their owner and operator and, by virtue of their dedication to public service, they are for the common use of all of their passengers. The Federal Government in its regulation of them is not only entitled, but is required, to take into consideration the interests of all concerned.
25
In a public vehicle there are mutual limitations upon the conduct of everyone, including the vehicle owner. These conflicting demands limit policies on such matters as operating schedules and the location of car or bus stops, as well as policies relating to the desirability or nature of radio programs in the vehicles. Legislation prohibiting the making of artificially amplified raucous sounds in public places has been upheld. Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513.10 Conversely, where a regulatory body has jurisdiction, it will be sustained in its protection of activities in public places when those activities do not interfere with the general public convenience, comfort and safety. The supervision of such practices by the Public Utilities Commission in the manner prescribed in the District of Columbia meets the requirements both of substantive and procedural due process when it is not arbitrarily and capriciously exercised.
26
The contention of Pollak and Martin would permit an objector, with a status no different from that of other passengers, to override not only the preference of the majority of the passengers but also the considered judgment of the federally authorized Public Utilities Commission, after notice, investigation and public hearings, and upon a record reasonably justifying its conclusion that the policy of the owner and operator did not interfere with public convenience, comfort and safety but tended, in general, to improve the utility service.
27
We do not agree with that contention. The protection afforded to the liberty of the individual by the Fifth Amendment against the action of the Federal Government does not go that far. The liberty of each individual in a public vehicle or public place is subject to reasonable limitations in relation to the rights of others.
28
This Court expresses no opinion as to the desirability of radio programs in public vehicles. In this case that is a matter for decision between Capital Transit, the public and the Public Utilities Commission. The situation is not unlike that which arises when a utility makes a change in its running schedules or in the locations of its stops in the interests of the majority of the passengers but against the vigorous protests of the few who are inconvenienced by the change.
29
The court below expressly refrained from passing on the constitutionality of the receipt and amplification in public vehicles of occasional broadcasts of music alone. Pollak and Martin, in No. 295, contend that broadcasts even so limited are unconstitutional. However, in view of our holding that the programs before us, containing music, commercial advertising and other announcements are constitutionally permissible, it is clear that programs limited to a like type of music alone would not be less so.
30
The judgment of the Court of Appeals, accordingly, is reversed and the case is remanded to the District Court.
31
Reversed.
32
Mr. Justice FRANKFURTER, for reasons stated by him, took no part in the consideration or decision of this case.
33
Separate Opinion of Mr. Justice BLACK.
34
I concur in the Court's holding that this record shows no violation of the Due Process Clause of the Fifth Amendment. I also agree that Capital Transit's musical programs have not violated the First Amendment. I am of the opinion, however, that subjecting Capital Transit's passengers to the broadcasting of news, public speeches, views, or propaganda of any kind and by any menas would violate the First Amendment. To the extent, if any, that the Court holds the contrary, I dissent.
35
Mr. Justice FRANKFURTER.
36
The judicial process demands that a judge move within the framework of relevant legal rules and the covenanted modes of thought for ascertaining them. He must think dispassionately and submerge private feeling on every aspect of a case. There is a good deal of shallow talk that the judicial robe does not change the man within it. It does. The fact is that on the whole judges do lay aside private views in discharging their judicial functions. This is achieved through training, professional habits, self-discipline and that fortunate alchemy by which men are loyal to the obligation with which they are entrusted. But it is also true that reason cannot control the subconscious influence of feelings of which it is unaware. When there is ground for believing that such unconsious feelings may operate in the ultimate judgment, or may not unfairly lead others to believe they are operating, judges recuse themselves. They do not sit in judgment. They do this for a variety of reasons. The guiding consideration is that the administration of justice should reasonably appear to be disinterested as well as be so in fact.
37
This case for me presents such a situation. My feelings are so strongly engaged as a victim of the practice in controversy that I had better not participate in judicial judgment upon it. I am explicit as to the reason for my non-participation in this case because I have for some time been of the view that it is desirable to state why one takes himself out of a case.
38
Mr. Justice DOUGLAS, dissenting.
39
This is a case of first impression. There are no precedents to construe; no principles previously expounded to apply. We write on a clean slate.
40
The case comes down to the meaning of 'liberty' as used in the Fifth Amendment. Liberty in the constitutional sense must mean more than freedom from unlawful governmental restraint; it must include privacy as well, if it is to be a repository of freedom. The right to be let alone is indeed the beginning of all freedom. Part of our claim to privacy is in the prohibition of the Fourth Amendment against unreasonable searches and seizures. It gives the guarantee that a man's home is his castle beyond invasion either by inquisitive or by officious people. A man loses that privacy of course when he goes upon the streets or enters public places. But even in his activities outside the home he has immunities from controls bearing on privacy. He may not be compelled against his will to attend a religious serivce; he may not be forced to make an affirmation or observe a ritual that violates his scruples; he may not be made to accept one religious, political, or philosophical creed as against another. Freedom of religion and freedom of speech guaranteed by the First Amendment give more than the privilege to worship, to write, to speak as one chooses; they give freedom not to do nor to act as the government chooses. The First Amendment in its respect for the conscience of the individual honors the sanctity of thought and belief. To think as one chooses, to believe what one wishes are important aspects of the constitutional right to be let alone.
41
If we remembered this lesson taught by the First Amendment, I do not believe we would construe 'liberty' within the meaning of the Fifth Amendment as narrowly as the Court does. The present case involves a form of coercion to make people listen. The listeners are of course in a public place; they are on streetcars traveling to and from home. In one sense it can be said that those who ride the streetcars do so voluntarily. Yet in a practical sense they are forced to ride, since this mode of transportation is today essential for many thousands. Compulsion which comes from circumstances can be as real as compulsion which comes from a command.
42
The streetcar audience is a captive audience. It is there as a matter of necessity, not of choice. One who is in a public vehicle may not of course complain of the noise of the crowd and the babble of tongues. One who enters any public place sacrifices some of his privacy. My protest is against the invasion of his privacy over and beyond the risk of travel.
43
The government may use the radio (or television) on public vehicles for many purposes. Today it may use it for a cultural end. Tomorrow it may use it for political purposes. So far as the right of privacy is concerned the purpose makes no difference. The music selected by one bureaucrat may be as offensive to some as it is soothing to others. The news commentator chosen to report on the events of the day may give overtones to the news that please the bureau head but which rile the streetcar captive audience. The political philosophy which one radio speaker exudes may be thought by the official who makes up the streetcar programs to be best for the welfare of the people. But the man who listens to it on his way to work in the morning and on his way home at night may think it marks the destruction of the Republic.
44
One who tunes in on an offensive program at home can turn it off or tune in another station, as he wishes. One who hears disquieting or unpleasant programs in public places, such as restaurants, can get up and leave. But the man on the streetcar has no choice but to sit and listen, or perhaps to sit and to try not to listen.
45
When we force people to listen to another's ideas, we give the propangandist a powerful weapon. Today it is a business enterprise working out a radio program under the auspices of government. Tomorrow it may be a dominant political or religious group. Today the purpose is benign; there is no invidious cast to the programs. But the vice is inherent in the system. Once privacy is invaded, privacy is gone. Once a man is forced to submit to one type of radio program, he can be forced to submit to another. It may be but a short step from a cultural program to a political program.
46
If liberty is to flourish, government should never be allowed to force people to listen to any radio program. The right of privacy should include the right to pick and choose from competing entertainments, competing propaganda, competing political philosophies. If people are let alone in those choices, the right of privacy will pay dividends in character and integrity. The strength of our system is in the dignity, the resourcefulness, and the independence of our people. Our confidence is in their ability as individuals to make the wisest choice. That system cannot flourish if regimentation takes hold. The right of privacy, today violated, is a powerful deterrent to any one who would control men's minds.
1
Capital Transit Company originates from the Act of Congress of March 4, 1925, authorizing the merger of street railway corporations operating in the District of Columbia. 43 Stat. 1265, D.C.Code 1940, § 43—503. The merger was approved by Joint Resolution, January 14, 1933. 47 Stat. 752, 819, D.C.Code 1940 note following § 43—503. That Resolution required the new company to be incorporated under the District Code and its corporate articles to be approved by the Public Utilities Commission of the District. 47 Stat. 753, 819, D.C.Code 1940 note following § 43—503; see 31 Stat. 1284 et seq., D.C.Code 1940, § 29 201 et seq.
The same Resolution prohibited the establishment of any competitive street railway or bus line without the issuance of a certificate by the Commission to the effect that such line is necessary for the convenience of the public. 47 Stat. 760, D.C.Code 1940, § 44—201. The only competing line in the District is a relatively small interurban line.
2
Typically, the equipment includes a receiving set and six loudspeakers in each vehicle. The set is tuned to a single broadcasting station. The loudspeakers are so located that the radio programs can be heard substantially uniformly throughout the vehicle. The volume of sound is adjusted so as not to interfere with the signals or announcements incident to vehicle operations or generally with conversations between passengers.
3
Uncontradicted testimony listed approximately the following numbers of vehicles equipped with transit radio in the areas named in October, 1949: St. Louis, Missouri, 1,000; Cincinnati, Ohio, 475; Houston, Texas, 270; Washington, D.C., 220; Worcester, Massachusetts, 220; Tacoma, Washington, 135; Evansville, Indiana, 110; Wilkes-Barre, Pennsylvania, 100; suburban Pittsburgh, Pennsylvania, 75; Allentown, Pennsylvania, 75; Huntington, West Virginia, 55; Des Moines, Iowa, 50; Topeka, Kansas, 50; suburban Washington, D.C., 30. Baltimore, Maryland, was listed but the number of vehicles was not stated.
4
'(a) Program content shall be of good quality and consonant with a high standard of public acceptance and responsibility, it being understood that all programs shall be carefully planned, edited and produced in accordance with accepted practices employed by qualified broadcasting stations.
'(b) Commercial announcements shall not exceed sixty (60) seconds in duration, and cumulatively shall not exceed six (6) minutes in any sixty (60) minute period.
'(c) Broadcast Station shall agree to cancel or suitably to modify any commercial continuity upon notice from Capital that said continuity, or the sponsor thereof is objectionable. Broadcast Station shall further agree that it shall give notice to Capital within twenty-four (24) hours after the acceptance of each new sponsor.
'(d) Capital is to receive without charge fifty per cent (50%) of the unsold time available for commercial continuity as provided in sub-section (b) hereof, (said free time not to exceed three (3) minutes in any sixty (60) minute period), for institutional and promotional announcements.'
5
'Par. 66. In the determination of any appeal from an order or decision of the Commission the review by the court shall be limited to questions of law, including constitutional questions; and the findings of fact by the Commission shall be conclusive unless it shall appear that such findings of the Commission are unreasonable, arbitrary, or capricious.' 49 Stat. 883, D.C.Code 1940, § 43—706.
On appeal to the District Court—
'the Commission shall file with the clerk of the said court the record, including a transcript of all proceedings had and testimony taken before the Commission, duly certified, upon which the said order or decision of the Commission was based, together with a statement of its findings of fact and conclusions upon the said record, and a copy of the application for reconsideration and the orders entered thereon: * * *.' 49 Stat. 883, D.C.Code 1940, § 43—705.
We treat the Commission's certification of its findings and conclusions, expressed in its statement of December 19, 1949, as meeting the above requirement. 81 P.U.R.(N.S.) 122, 124—126.
6
A comparable survey, made April 1—7, 1949, under the same direction, produced substantially the same result. The weight to be attached to these surveys was a proper matter for determination by the Commission.
The Commission invited views as to the radio service to be given to it freely, either through sworn, testimony or otherwise. Many citizens' associations appeared or filed resolutions favoring or opposing the radio service. A large majority favored the service.
That the Commission gave consideration to the intensity and nature of the individual objections raised appears from the following:
'In general, the objections raised by individuals who attended the hearings to radios in transportation vehicles were based upon the following reasons, among others:
'It interfered with their thinking, reading, or chatting with their companions; it would lead to thought control; the noise was unbearable; the commercials, announcements, and time signals were annoying; the music was of the poorest class; the practice deprived them of their right to listen or not to listen; they were being deprived of their property rights without due process; their health was being impaired; the safety of operation was threatened because of the effect of radios upon the operators of the vehicles.' 81 P.U.R. (N.S.), at 124.
7
'Amendment (I.)
'Congress shall make no law * * * abridging the freedom of speech * * *.
'Amendment (V.)
'No person shall * * * be deprived of life, liberty, or property, without due process of law; * * *.'
8
'(W)hen 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 Ass'n v. Douds, 339 U.S. 382, 401, 70 S.Ct. 674, 685, 94 L.Ed. 925. Cf. Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987; and see Olcott v. Supervisors, 16 Wall. 678, 695—696, 21 L.Ed. 382.
9
See generally, Shipley, Some Constitutional Aspects of Transit Radio, 11 F.C. Bar J. 150.
The Communications Act of 1934, 48 Stat. 1064 et seq., as amended, 47 U.S.C. § 151 et seq., 47 U.S.C.A. § 151 et seq., has been interpreted by the Federal Communications Commission as imposing upon each licensee the duty of fir presentation of news and controversial issues. F.C.C. Report on Editorializing by Licensees, 1 Pike & Fischer Radio Regulation 91:201 (1949).
10
The interest of some unwilling listeners was there held to justify some limitation on the freedom of others to amplify their speech. The decision, however, did not indicate that it would violate constitutional rights of privacy or due process for the city to authorize some use of sound trucks and amplifiers in public places.
| 45
|
343 U.S. 444
72 S.Ct. 838
96 L.Ed. 1063
BESSER MFG. CO. et al.v.UNITED STATES.
No. 230.
Argued April 21, 1952.
Decided May 26, 1952.
Mr. Carl R. Henry, Alpena, Mich., for appellants.
Mr. Marcus A. Hollabaugh, Washington, D.C., for appellee.
Mr. Justice JACKSON delivered the opinion of the Court.
1
The United States brought this civil action under § 4 of the Sherman Act charging appellants and others with conspiring to restrain and monopolize interstate commerce in concrete block-making machinery in violation of §§ 1 and 2 of the Act, and charging appellants with monopolizing and attempting to monopolize the same industry in violation of § 2 of the Act.1
2
The defendants below were the Stearns Manufacturing Company, second largest producer in the country of concrete block-making machines, Besser Manufacturing Company, the country's dominant producer of such machinery and substantial stockholder in the Stearns Company, Jesse H. Besser, long-time president and virtually sole stockholder of the Besser Company, and two individuals, Gelbman and Andrus, co-owners of certain important patents in the concrete block-making machine field.
3
The United States District Court for the Eastern District of Michigan found the Government's charges clearly proved, and entered a judgment intended to correct the Sherman Act violations found to exist.2
4
Only the Besser Company and Jesse H. Besser have appealed, bringing their case here directly.3
5
Appellants assert that the factual conclusions of the trial court are erroneous. Only recently we reiterated the narrow scope of review here with respect to issues of fact in antitrust cases. United States v. Oregon State Medical Society, 343 U.S. 326, 72 S.Ct. 690. In this case we think it enough to say that the conclusions of the trial judge that appellants conspired to restrain and monopolize interstate commerce in concrete block-making machinery and that they monopolized and attempted to monopolize that industry are overwhelmingly supported by the evidence. Not the slightest ground appears for concluding that the trial judge's findings were 'clearly erroneous.' Rule 52(a), Fed.Rules Civ.Proc., 28 U.S.C.A.
6
We turn now to the provisions of the judgment entered below which are attacked by appellants. It is unnecessary for us to review appellants' activities in detail, for they are adequately set out in the opinion below. Suffice it to say that appellants sought to eliminate competition through outright purchase of competitors and strict patent-licensing arrangements with the Stearns Company and the patent owners, Gelbman and Andrus.
7
Appellants contend that the provisions of the judgment requiring them to issue patent licenses on a fair royalty basis and requiring them to grant to existing lessees of their machines an option, on terms 'mutually satisfactory to the parties concerned,' (1) to terminate their lease, (2) to continue their lease, or (3) to purchase leased machines, are punitive, confiscatory and inappropriate.
8
However, compulsory patent licensing is a well-recognized remedy where patent abuses are proved in antitrust actions and it is required for effective relief. Hartford-Empire Co. v. United States, 323 U.S. 386, 413, 417—418, 65 S.Ct. 373, 387, 388—389, 89 L.Ed. 322; United States v. National Lead Co., 332 U.S. 319, 338, 67 S.Ct. 1634, 1643, 91 L.Ed. 2077; United States v. United States Gypsum Co., 340 U.S. 76, 94, 71 S.Ct. 160, 172, 95 L.Ed. 89.
9
The compulsory sale provision of the judgment, strenuously attacked, is likewise a recognized remedy. International Salt Co. v. United States, 332 U.S. 392, 398—399, 68 S.Ct. 12, 16, 92 L.Ed. 20. That required by the judgment in this case must be considered in conjunction with the alternatives associated with it. Appellants are left free to lease rather than sell if they can make a lease sufficiently attractive.
10
Appellants further argue that the method adopted by the court below for fixing reasonable royalty rates under their patent licenses deprives them of their property without due process of law. The court directed Besser and the Government each to select two persons to serve as arbitrators on a committee to establish fair royalty rates and the form and contents of royalty contracts. It was also provided that in the event of a stalemate the four representatives should choose a fifth to vote and break the deadlock. If they could not agree on a fifth representative, the trial judge was to sit as the fifth or appoint another person to serve in his place. After some delay, and under protest, Besser appointed his representatives, the Government having appointed its shortly after the plan had been promulgated by the court. The representatives selected by the Government were taken from the industry, the Government noting to the court that they were serving on their own behalf and as agents of other prospective licensees, and not as agents of the Department of Justice.
11
When an impasse was reached with regard to royalty rates on certain Besser patents, the judge stepped in as the fifth arbitrator and voted for the rates proposed by the government-appointed representatives. Appellants assail this procedure with the contention that royalties set must be 'made in judicial proceedings based on the hearing and evaluation of evidence in the light of appropriate criteria.'
12
Appellants' argument fails on two counts. First, it necessarily attacks the sufficiency of the evidentiary material considered in arriving at the royalties finally established. We do not pass on matters of that character in the absence of glaring error not shown here. Secondly, appellants appear to have misunderstood the true nature of what was done, for it was always within the power of the trial judge to establish the royalty rates, and, in voting as he did, he did just that. They contend that the judge should either have held a full hearing himself or referred the royalty matters to a master for such a hearing. We do not, however, think that in reducing the terms of a decree to concrete measures such procedures are mandatory. It is true that the procedure adopted below is an innovation in certain aspects, but novelty is not synonymous with error.
13
In framing relief in antitrust cases, a range of discretion rests with the trial judge. United States v. National Lead Co., supra, 332 U.S. at page 338, 67 S.Ct. 1643; International Salt Co. v. United States, supra, 332 U.S. at pages 400—401, 405, 68 S.Ct. 17, 19; United States v. Crescent Amusement Co., 323 U.S. 173, 185, 65 S.Ct. 254, 260, 89 L.Ed. 160. We can see no abuse of discretion here. Compulsory licensing and sale of patented devices are recognized remedies. They would seem particularly appropriate where, as here, a penchant for abuses of patent rights is demonstrated. With respect to the procedure for establishing royalty rates, the court below was likewise acting within the discretion vested in it. '(The District Court) should provide for its determination of a reasonable royalty either in each instance of failure to agree or by an approved form or by any other plan in its discretion.' (Italics added.) United States v. United States Gypsum Co., supra, 340 U.S. at page 94, 71 S.Ct. at page 172. The procedure here was entirely reasonable and fair. A competent committee considered relevant evidence and the judge, on the basis of the evidence adduced before the committee, resolved the deadlock into which the negotiations had fallen.
14
Although not condemning the royalty-setting procedure used here, the Government indicates faint enthusiasm for it, and suggests that this Court consider the procedure outlined by it below and direct that it be utilized hereafter in the proceedings remaining in this litigation. We would exceed our appellate functions were we to adopt that suggestion in this case. 'The framing of decrees should take place in the District rather than in Appellate Courts.' International Salt Co. v. United States, supra, 332 U.S. at page 400, 68 S.Ct. at page 17; United States v. Crescent Amusement Co., supra, 323 U.S. at page 185, 65 S.Ct. 260.
15
We have examined appellants' other contentions and concluded that they are without merit.
16
In accordance with the foregoing, the judgment below is affirmed.
17
Affirmed.
18
Mr. Justice CLARK took no part in the consideration or decision of this case.
1
26 Stat. 209, as amended, 15 U.S.C. § 4, 15 U.S.C.A. § 4: 'The several district courts of the United States are invested with jurisdiction to prevent and restrain violations of sections 1 7 of this title; and it shall be the duty of the several district attorneys of the United States, in their respective districts, under the direction of the Attorney General, to institute proceedings in equity to prevent and restrain such violations. * * *'
15 U.S.C. § 1, 15 U.S.C.A. § 1: 'Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States * * * is declared to be illegal * * *.'
15 U.S.C. § 2, 15 U.S.C.A. § 2: 'Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States * * * shall be deemed guilty of a misdemeanor * * *.'
2
96 F.Supp. 304.
3
Pursuant to § 2 of the Expediting Act of 1903, 32 Stat. 823, as amended, 15 U.S.C. § 29, 15 U.S.C.A. § 29.
| 78
|
343 U.S. 395
72 S.Ct. 824
96 L.Ed. 1027
NATIONAL LABOR RELATIONS BOARDv.AMERICAN NAT. INS. CO.
No. 126.
Argued March 4, 1952.
Decided May 26, 1952.
Mr. Mozart G. Ratner, Washington, D.C., for petitioner.
Mr. Louis J. Dibrell, Galveston, Tex., for respondent.
Mr. Chief Justice VINSON delivered the opinion of the Court.
1
This case arises out of a complaint that respondent refused to bargain collectively with the representatives of its employees as required under the National Labor Relations Act, as amended.1
2
The Office Employees International Union A.F. of L., Local No. 27, certified by the National Labor Relations Board as the exclusive bargaining representative of respondent's office employees, requested a meeting with respondent for the purpose of negotiating an agreement governing employment relations. At the first meetings, beginning on November 30, 1948, the Union submitted a proposed contract covering wages, hours, promotions, vacations and other provisions commonly found in collective bargaining agreements, including a clause establishing a procedure for settling grievances arising under the contract by successive appeals to management with ultimate resort to an arbitrator.
3
On January 10, 1949, following a recess for study of the Union's contract proposals, respondent objected to the provisions calling for unlimited arbitration. To meet this objection, respondent proposed a so-called management functions clause listing matters such as promotions, discipline and work scheduling as the responsibility of management and excluding such matters from arbitration.2 The Union's representative took the position 'as soon as (he) heard (the proposed clause)' that the Union would not agree to such a clause so long as it covered matters subject to the duty to bargain collectively under the Labor Act.
4
Several further bargaining sessions were held without reaching agreement on the Union's proposal or respondent's counterproposal to unlimited arbitration. As a result, the management functions clause was 'by-passed' for bargaining on other terms of the Union's contract proposal. On January 17, 1949, respondent stated in writing its agreement with some of the terms proposed by the Union and, where there was disagreement, respondent offered counter-proposals, including a clause entitled 'Functions and Prerogatives of Management' along the lines suggested at the meeting of January 10th. The Union objected to the portion of the clause providing:
5
'The right to select and hire, to promote to a better position, to discharge, demote or discipline for cause, and to maintain discipline and efficiency of employees and to determine the schedules of work is recognized by both union and company as the proper responsibility and prerogative of management to be held and exercised by the company, and while it is agreed that an employee feeling himself to have been aggrieved by any decision of the company in respect to such matters, or the union in his behalf, shall have the right to have such decision reviewed by top management officials of the company under the grievance machinery hereinafter set forth, it is further agreed that the final decision of the company made by such top management officials shall not be further reviewable by arbitration.'
6
At this stage of the negotiations, the National Labor Relations Board filed a complaint against respondent based on the Union's charge that respondent had refused to bargain as required by the Labor Act and was thereby guilty of interfering with the rights of its employees guaranteed by Section 7 of the Act and of unfair labor practices under Sections 8(a)(1) and 8(a)(5) of the Act.3 While the proceeding was pending, negotiations between the Union and respondent continued with the management functions clause remaining an obstacle to agreement. During the negotiations, respondent established new night shifts and introduced a new system of lunch hours without consulting the Union.
7
On May 19, 1949, a Union representative offered a second contract proposal which included a management functions clause containing much of the language found in respondent's second counterproposal, quoted above, with the vital difference that questions arising under the Union's proposed clause would be subject to arbitration as in the case of other grievances. Finally, on January 13, 1950, after the Trial Examiner had issued his report but before decision by the Board, an agreement between the Union and respondent was signed.4 The agreement contained a management functions clause that rendered nonarbitrable matters of discipline, work schedules and other matters covered by the clause. The subject of promotions and demotions was deleted from the clause and made the subject of a special clause establishing a union-management committee to pass upon promotion matters.
8
While these negotiations were in progress, the Board's Trial Examiner conducted hearings on the Union's complaint. The Examiner held that respondent had a right to bargain for inclusion of a management functions clause in a contract. However, upon review of the entire negotiations, including respondent's unilateral action in changing working conditions during the bargaining, the Examiner found that from and after November 30, 1948, respondent had refused to bargain in a good faith effort to reach agreement. The Examiner recommended that respondent be ordered in general terms to bargain collectively with the Union.
9
The Board agreed with the Trial Examiner that respondent had not bargained in a good faith effort to reach an agreement with the Union. But the Board rejected the Examiner's views on an employer's right to bargain for a management functions clause and held that respondent's action in bargaining for inclusion of any such clause 'constituted, quite (apart from) Respondent's demonstrated bad faith, per se violations of Section 8(a)(5) and (1).' Accordingly, the Board not only ordered respondent in general terms to bargain collectively with the Union (par. 2(a)), but also included in its order a paragraph designed to prohibit bargaining for any management functions clause covering a condition of employment. (Par. 1(a)).5 89 N.L.R.B. 185.
10
On respondent's petition for review and the Board's cross-petition for enforcement, the Court of Appeals for the Fifth Circuit agreed with the Trial Examiner's view that the Act does not preclude an employer from bargaining for inclusion of any management functions clause in a labor agreement. The Court of Appeals further found that the evidence does not support the view that respondent failed to bargain collectively in good faith by reason of its bargaining for a management functions clause. As a result, enforcement of the portion of the Board's order directed to the management functions clause (par. 1(a)) was denied. Other portions of the Board's order (pars. 1(b) and 2(a)) were enforced because respondent's unilateral action in changing working conditions during bargaining does support a finding that respondent had not bargained collectively in good faith as required by the Act. 5 Cir., 187 F.2d 307. We granted certiorari on petition of the Board for review of the denial of enforcement as to paragraph 1(a) of the Board's order. 342 U.S. 809, 72 S.Ct. 40.
11
First. The National Labor Relations Act is designed to promote industrial peace by encouraging the making of voluntary agreements governing relations between unions and employers.6 The Act does not compel any agreement whatsoever between employees and employers.7 Nor does the Act regulate the substantive terms governing wages, hours and working conditions which are incorporated in an agreement.8 The theory of the Act is that the making of voluntary labor agreements is encouraged by protecting employees' rights to organize for collective bargaining and by imposing on labor and management the mutual obligation to bargain collectively.
12
Enforcement of the obligation to bargain collectively is crucial to the statutory scheme. And, as has long been recognized, performance of the duty to bargain requires more than a willingness to enter upon a sterile discussion of union-management differences. Before the enactment of the National Labor Relations Act, it was held that the duty of an employer to bargain collectively required the employer 'to negotiate in good faith with his employees' representatives; to match their proposals, if unacceptable, with counter-proposals; and to make every reasonable effort to reach an agreement.'9 The duty to bargain collectively, implicit in the Wagner Act as introduced in Congress, was made express by the insertion of the fifth employer unfair labor practice accompanied by an explanation of the purpose and meaning of the phrase 'bargain collectively in a good faith effort to reach an agreement.'10 This understanding of the duty to bargain collectively has been accepted and applied throughout the administration of the Wagner Act by the National Labor Relations Board and the Courts of Appeal.11
13
In 1947, the fear was expressed in Congress that the Board 'has gone very far, in the guise of determining whether or not employers had bargained in good faith, in setting itself up as the judge of what concessions an employer must make and of the proposals and counter-proposals that he may or may not make.'12 Accordingly, the Hartley Bill, passed by the House, eliminated the good faith test and expressly provided that the duty to bargain collectively did not require submission of counter-proposals.13 As amended in the Senate and passed as the Taft-Hartley Act, the good faith test of bargaining was retained and written into Section 8(d) of the National Labor Relations Act. That Section contains the express provision that the obligation to bargain collectively does not compel either party to agree to a proposal or require the making of a concession.14
14
Thus it is now apparent from the statute itself that the Act does not encourage a party to engage in fruitless marathon discussions at the expense of frank statement and support of his position. And it is equally clear that the Board may not, either directly or indirectly, compel concessions or otherwise sit in judgment upon the substantive terms of collective bargaining agreements.
15
Second. The Board offers in support of the portion of its order before this Court a theory quite apart from the test of good faith bargaining prescribed in Section 8(d) of the Act, a theory that respondent's bargaining for a management functions clause as a counterproposal to the Union's demand for unlimited arbitration was, 'per se,' a violation of the Act.
16
Counsel for the Board do not contend that a management functions clause covering some conditions of employment is an illegal contract term.15 As a matter of fact, a review of typical contract clauses collected for convenience in drafting labor agreements shows that management functions clauses similar in essential detail to the clause proposed by respondent have been included in contracts negotiated by national unions with many employers.16 The National War Labor Board, empowered during the last war '(t)o decide the dispute, and provide by order the wages and hours and all other terms and conditions (customarily included in collective-bargaining agreements)',17 ordered management functions clauses included in a number of agreements.18 Several such clauses ordered by the War Labor Board provided for arbitration in case of union dissatisfaction with the exercise of management functions, while others, as in the clause proposed by respondent in this case, provided that management decisions would be final.19 Without intimating any opinion as to the form of management functions clause proposed by respondent in this case or the desirability of including any such clause in a labor agreement, it is manifest that bargaining for management functions clauses is common collective bargaining practice.
17
If the Board is correct, an employer violates the Act by bargaining for a management functions clause touching any condition of employment without regard to the traditions of bargaining in the particular industry or such other evidence of good faith as the fact in this case that respondent's clause was offered as a counterproposal to the Union's demand for unlimited arbitration. The Board's argument is a technical one for it is conceded that respondent would not be guilty of an unfair labor practice if, instead of proposing a clause that removed some matters from arbitration, it simply refused in good faith to agree to the Union proposal for unlimited arbitration. The argument starts with a finding, not challenged by the court below or by respondent,20 that at least some of the matters covered by the management functions clause proposed by respondent are 'conditions of employment' which are appropriate subjects of collective bargaining under Sections 8(a)(5), 8(d) and 9(a) of the Act.21 The Board considers that employer bargaining for a clause under which management retains initial responsibility for work scheduling, a 'condition of employment,' for the duration of the contract is an unfair labor practice because it is 'in derogation of' employees' statutory rights to bargain collectively as to conditions of employment.22
18
Conceding that there is nothing unlawful in including a management functions clause in a labor agreement, the Board would permit an employer to 'propose' such a clause. But the Board would forbid bargaining for any such clause when the Union declines to accept the proposal, even where the clause is offered as a counterproposal to a Union demand for unlimited arbitration. Ignoring the nature of the Union's demand in this case, the Board takes the position that employers subject to the Act must agree to include in any labor agreement provisions establishing fixed standards for work schedules or any other condition of employment. An employer would be permitted to bargain as to the content of the standard so long as he agrees to freeze a standard into a contract. Bargaining for more flexible treatment of such matters would be denied employers even though the result may be contrary to common collective bargaining practice in the industry. The Board was not empowered so to disrupt collective bargaining practices. On the contrary, the term 'bargain collectively' as used in the Act 'has been considered to absorb and give statutory approval to the philosophy of bargaining as worked out in the labor movement in the United States.' Order of Railroad Telegraphers v Railway Express Agency, 1944, 321 U.S. 342, 346, 64 S.Ct. 582, 585, 88 L.Ed. 788.
19
Congress provided expressly that the Board should not pass upon the desirability of the substantive terms of labor agreements. Whether a contract should contain a clause fixing standards for such matters as work scheduling or should provide for more flexible treatment of such matters is an issue for determination across the bargaining table, not by the Board. If the latter approach is agreed upon, the extent of union and management participation in the administration of such matters is itself a condition of employment to be settled by bargaining.
20
Accordingly, we reject the Board's holding that bargaining for the management functions clause proposed by respondent was, per se, an unfair labor practice. Any fears the Board may entertain that use of management functions clauses will lead to evasion of an employer's duty to bargain collectively as to 'rates of pay, wages, hours and conditions of employment' do not justify condemning all bargaining for management functions clauses covering any 'condition of employment' as per se violations of the Act. The duty to bargain collectively is to be enforced by application of the good faith bargaining standards of Section 8(d) to the facts of each case rather than by prohibiting all employers in every industry from bargaining for management functions clauses altogether.
21
Third. The court below correctly applied the statutory standard of good faith bargaining to the facts of this case. It held that the evidence, viewed as a whole does not show that respondent refused to bargain in good faith by reason of its bargaining for a management functions clause as a counterproposal to the Union's demand for unlimited arbitration. Respondent's unilateral action in changing working conditions during bargaining, now admitted to be a departure from good faith bargaining, is the subject of an enforcement order issued by the court below and not challenged in this Court.
22
Last term we made it plain that Congress charged the Courts of Appeals, not this Court, with the normal and primary responsibility for reviewing the conclusions of the Board. We stated that this Court 'is not the place to review a conflict of evidence nor to reverse a Court of Appeals because were we in its place we would find the record tilting one way rather than the other, though fair-minded judges could find it tilting either way.' National Labor Relations Board v. Pittsburgh S.S. Co., 1951, 340 U.S. 498, 503, 71 S.Ct. 453, 456, 95 L.Ed. 479. We repeat and reaffirm this rule, noting its special applicability to cases where, as here, a statutory standard such as 'good faith' can have meaning only in its application to the particular facts of a particular case.
23
Accepting as we do the finding of the court below that respondent bargained in good faith for the management functions clause proposed by it, we hold that respondent ws not in that respect guilty of refusing to bargain collectively as required by the National Labor Relations Act. Accordingly, enforcement of paragraph 1(a) of the Board's order was properly denied.23
24
Affirmed.
25
Mr. Justice MINTON, with whom Mr. Justice BLACK and Mr. Justice DOUGLAS join, dissenting:
26
I do not see how this case is solved by telling the National Labor Relations Board that since some 'management functions' clauses are valid (which the Board freely admits), respondent was not guilty of an unfair labor practice in this case. The record is replete with evidence that respondent insisted on a clause which would classify the control over certain conditions of employment as a management prerogative, and that the insistence took the form of a refusal to reach a settlement unless the Union accepted the clause.1 The Court of Appeals agreed that respondent was 'steadfast' in this demand. Therefore, this case is one where the employer came into the bargaining room with a demand that certain topics upon which it had a duty to bargain were to be removed from the agenda—that was the price the Union had to pay to gain a contract. There is all the difference between the hypothetical 'management functions' clauses envisioned by the majority and this 'management functions' clause as there is between waiver and coercion. No one suggests that an employer is guilty of an unfair labor practice when it proposes that it be given unilateral control over certain working conditions and the union accepts the proposal in return for various other benefits. But where, as here, the employer tells the union that the only way to obtain a contract as to wages is to agree not to bargain about certain other working conditions, the employer has refused to bargain about those other working conditions. There is more than a semantic difference between a proposal that the union waive certain rights and a demand that the union give up those rights as a condition precedent to enjoying other rights.2
27
I need not and do not take issue with the Court of Appeals' conclusion that there was no absence of good faith. Where there is a refusal to bargain, the Act does not require an inquiry as to whether that refusal was in good faith or bad faith.3 The duty to bargain about certain subjects is made absolute by the Act.4 The majority seems to suggest that an employer could be found guilty of bad faith if it used a 'management functions' clause to close off bargaining about all topics of discussion. Whether the employer closes off all bargaining or, as in this case, only a certain area of bargaining, he has refused to bargain as to whatever he has closed off, and any discussion of his good faith is pointless.
28
That portion of § 8(d) of the Act which declares that an employer need not agree to a proposal or make concessions does not dispose of this case. Certainly the Board lacks power to compel concessions as to the substantive terms of labor agreements. But the Board in this case was seeking to compel the employer to bargain about subjects properly within the scope of collective bargaining.5 That the employer has such a duty to bargain and that the Board is empowered to enforce the duty is clear.
29
An employer may not stake out an area which is a proper subject for bargaining and say, 'As to this we will not bargain.' To do so is a plain refusal to bargain in violation of § 8(a)(5) of the Act. If employees' bargaining rights can be cut away so easily, they are indeed illusory. I would reverse.
1
49 Stat. 449 (1935), 29 U.S.C. § 151 et seq., 29 U.S.C.A. § 151 et seq., as amended, 61 Stat. 136 (1947), 29 U.S.C. (Supp. IV) § 151 et seq., 29 U.S.C.A. § 151 et seq.
2
As drafted during the bargaining session, the proposed clause read:
'The right to select, hire, to promote, demote, discharge, discipline for cause, to maintain discipline and efficiency of employees, and to determine schedules of work is the sole prerogative of the Company and the Company's decision with respect to such matters shall never be the subject to arbitration.' (R.I. p. 97.)
3
61 Stat. 136, 140—143 (1947):
'Sec. 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, * * *.
'Sec. 8. (a) It shall be an unfair labor practice for an employer—
'(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7;
'(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a).
'(d) For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable time and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession: * * *.
'Sec. 9. (a) Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: * * *.'
4
Respondent's suggestion that negotiation of a contract rendered the case moot has been properly rejected below. See National Labor Relations Board v. Mexia Textile Mills, 1950, 339 U.S. 563, 70 S.Ct. 826, 833, 94 L.Ed. 1067; National Labor Relations Board v. Pool Mfg. Co., 1950, 339 U.S. 577, 70 S.Ct. 830, 94 L.Ed. 1077.
5
The Board ordered that respondent:
'1. Cease and desist from:
'(a) Refusing to bargain collectively with Office Employees International Union, A.F.L., Local No. 27, as the exclusive representative of all of its employees at its Galveston, Texas, office, excluding guards, secretaries to department heads and executives, agents, building and maintenance employees, professional employees, department heads, and all other supervisors as defined in the Act, by insisting as a condition of agreement, that the said Union agree to a provision whereby the Respondent reserves to itself the right to take unilateral action with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment;
(Paragraph (b) proscribes other conduct not pertinent to the issues before this Court.)
'2. Take the following affirmative action which the Board finds will effectuate the policies of the Act:
'(a) Upon request, bargain collectively with Office Employees International Union, A.F.L., Local No. 27, as the exclusive representative of all its employees in the appropriate unit described above with respect to rates of pay, wages, hours of employment, and other conditions of employment; * * *'
6
61 Stat. 136 ('Findings and Policies'); Consolidated Edison Co. v. National Labor Relations Board, 1938, 305 U.S. 197, 236, 59 S.Ct. 206, 219, 83 L.Ed. 126.
7
National Labor Relations Board v. Jones & Laughlin Steel Corp., 1937, 301 U.S. 1, 45, 57 S.Ct. 615, 628, 81 L.Ed. 893.
8
Terminal Railroad Ass'n of St. Louis v. Trainmen, 1943, 318 U.S. 1, 6, 63 S.Ct. 420, 423, 87 L.Ed. 571:
'The Railway Labor Act, like the National Labor Relations Act, does not undertake governmental regulation of wages, hours, or working conditions. Instead it seeks to provide a means by which agreement may be reached with respect to them. The national interest expressed by those Acts is not primarily in the working conditions as such. So far as the Act itself is concerned these conditions may be as bad as the employees will tolerate or be made as good as they can bargain for. The Act does not fix and does not authorize anyone to fix generally aplicable standards for working conditions. * * *'
9
Houde Engineering Corp., 1 N.L.R.B. (old) 35 (1934), decided by the National Labor Relations Board organized under 48 Stat. 1183 (1934).
10
Before the addition of Section 8(5), now Section 8(a)(5), to the bill, Senator Wagner described the bill as imposing the duty to bargain in good faith, citing the Houde Engineering case, note 9, supra. Hearings before the Senate Committee on Education and Labor on S. 1958, 74th Cong., 1st Sess. 43 (1935). Section 8(5) was inserted at the suggestion of the Chairmen of the Board that decided Houde. Id., at 79, 136—137. The insertion of Section 8(5) was described by the Senate Committee as follows:
'The committee wishes to dispel any possible false impression that this bill is designed to compel the making of agreements or to permit governmental supervision of their terms. It must be stressed that the duty to bargain collectively does not carry with it the duty to reach an agreement, because the essence of collective bargaining is that either party shall be free to decide whether proposals made to it are satisfactory.
'But, after deliberation, the committee has concluded that this fifth unfair labor practice should be inserted in the bill. It seems clear that a guarantee of the right of employees to bargain collectively through representatives of their own choosing is a mere delusion if it is not accompanied by the correlative duty on the part of the other party to recognize such representatives as they have been designated (whether as individuals or labor organizations) and to negotiate with them in a bona fide effort to arrive at a collective bargaining agreement. * * *' S.Rep.No.573, 74th Cong., 1st Sess. 12 (1935).
See H. J. Heinz Co. v. National Labor Relations Board, 1941, 311 U.S. 514, 61 S.Ct. 320, 85 L.Ed. 309.
11
The Board applied the good faith test of bargaining from the outset. 1 N.L.R.B.Ann.Rep. 85—87 (1936). Cases in the Courts of Appeal approving and applying the good faith test of bargaining are collected in 29 U.S.C.A. § 158, note 265.
12
H.R.Rep.No.245, 80th Cong., 1st Sess. 19 (1947).
13
H.R. 3020, 80th Cong., 1st Sess., § 2(11) (1947).
14
Note 3, supra. The term 'concession' was used in place of 'counterproposal' at the suggestion of the Chairman of the Board that the statutory definition of collective bargaining should conform to the meaning of good faith bargaining as understood at the passage of the Wagner Act. S.Rep.No.105, 80th Cong., 1st Sess. 24 (1947); Hearings before House Committee on Education and Labor on Amendment to the National Labor Relations Act, 80th Cong., 1st Sess. 3174—3175 (1947). See H.R.Rep.No.510, 80th Cong., 1st Sess. 34 (1947).
15
Thus we put aside such cases as National Labor Relations Board v. National Maritime Union, 2 Cir., 1949, 175 F.2d 686 (bargaining for discriminatory hiring hall clause), where a party bargained for a clause violative of an express provision of the Act.
16
H.R.Doc.No.125, 81st Cong., 1st Sess. 3—10 (1949) (U.S.Dept. of Labor Bull.No. 908—12); Collective Bargaining Contracts (B.N.A.1941) 363—368; Classified Provisions of Thirty-Seven Collective Bargaining Agreements for Wage Earners in the Iron and Steel Industry (American Iron & Steel Inst.1948) 68 73; Tested Clauses for Union Contracts (Labor Relations Inst. (1945)), 11—16; Welty, Labor Contract Clauses (1945), 76—82; Hoebreckx, Management Handbook for Collective Bargaining (1947), 177—182; Smith, Labor Law Cases and Materials (1950), 1008—1011; Industrial Relations Research Service Study No. 1, Management's Prerogatives (1945), App.; Pace, Management Prerogatives Defined in Union Contracts (Calif.Inst. Tech.1945); Teller, Management Functions under Collective Bargaining (1947), 427—437 (23 out of 53 collective bargaining agreements examined by th author contained management functions clauses).
Writers advocating inclusion of detailed management functions clauses in collective bargaining agreements urge the desirability of defining the respective functions of management and labor in matters such as work scheduling consistent with the needs of the particular industry. See Cox and Dunlop, Regulation of Collective Bargaining by the National Labor Relations Board, 63 Harv.L.Rev. 389 (1950); Hill and Hook, Management at the Bargaining Table (1945), 56—138; Teller, Management Functions under Collective Bargaining (1947), 114—116. Separate views on 'Management's Right to Manage' were presented by the Labor and Management members of The President's National Labor-Management conference, November 5 30, 1945, U.S.Dept. of Labor Bull.No.77 (1946), 56—62.
17
57 Stat. 163, 166 (1943), § 7.
18
United Aircraft Corp., 18 War Lab.Rep. 9 (1944); Mead Corp., 8 War Lab.Rep. 471 (1943); Hospital Supply Co., 7 War Lab.Rep. 526 (1943). See also McQuay-Norris Mfg. Co., 28 War Lab.Rep. 211 (1945); Teller, Management Functions under Collective Bargaining (1947), 29—49.
Disputes as to the content of management functions clauses have also been considered by the present Wage Stabilization Board, Basic Steel Industry, 18 L.A. 112 (1952) (recommendation that proposed changes in clause be rejected), and by a Presidential Emergency Board, Northwest Airlines, Inc., 5 L.A. 71 (1946) (recommendation that clause be incorporated in agreement).
19
Compare East Alton Mfg. Co., 5 War Lab.Rep. 47 (1942) (arbitration provision ordered), with Atlas Power Co., 5 War Lab.Rep. 371 (1942) (arbitration provision denied).
Union objections to a management functions clause as covering matters subject to collective bargaining did not deter the War Labor Board from ordering such a clause where deemed appropriate in a particular case. Curtiss-Wright Corp., 25 War Lab.Rep. 83, 114—115 (1945).
20
This is not the case of an employer refusing to bargain over an issue on the erroneous theory that, as a matter of law, such an issue did not involve a 'condition of employment' within the meaning of the Act. Compare Inland Steel Co. v. National Labor Relations Board, 7 Cir., 1948, 170 F.2d 247 (pensions); National Labor Relations Board v. J. H. Allison & Co., 6 Cir., 1948, 165 F.2d 766 (merit wage increases).
21
Note 3, supra. See Bus Employees v. Wisconsin Board, 1951, 340 U.S. 383, 399, 71 S.Ct. 359, 368, 95 L.Ed. 364.
22
The Board's argument would seem to prevent an employer from bargaining for a 'no-strike' clause, commonly found in labor agreements, requiring a union to forego for the duration of the contract the right to strike expressly granted by Section 7 of the Act. However, the Board has permitted an employer to bargain in good faith for such a clause. Shell Oil Co., 77 N.L.R.B. 1306 (1948). This result is explained by referring to the 'salutary objective' of such a clause. Bethlehem Steel Co., 89 N.L.R.B. 341, 345 (1950).
23
See National Labor Relations Board v. Crompton-Highland Mills, 1949, 337 U.S. 217, 226—227, 69 S.Ct. 960, 964—965, 93 L.Ed. 1320.
1
A member of respondent's negotiating committee stated that the committee 'had given considerable thought to the character of prerogative that, in our opinion, the Company was entitled to main-
tain for its management, as well as considerable thought to the character of safeguard which would make the retention of such prerogatives * * * of value and worth to the Company, and invulnerable to attack. * * * (W)e orally stated to the Union that that was going to be the position of the company. * * *' (R. II, p. 32.)
A union negotiator testified as follows:
'Q. Now, as I understand your testimony, you have said that Company said you would have to agree. * * * A. It was the condition of a contract.
'Q. Now, how often, if it was more than once, did the Company state that or something similar to that * * * did they only say it once or did they state it more than once? A. I can't testify as to the number of times. I will say they said it several times.
'A. To get a contract, an agreement must be reached and must be made by the Union to include Article II—A as the Company's prerogative clause.' (R. III, pp. 60—61.)
The same Company negotiator told the Union that the clause in question was the 'meat of the contract' and that if the Union accepted it a contract could be obtained in 'short order.' R. III, p. 60.)
2
There is similarly a difference between a union voluntarily disbanding, and the employer insisting that it disband as a condition of granting a wage increase. Cf. McQuay-Norris Mfg. Co. v. National Labor Relations Board, 7 Cir., 116 F.2d 748.
3
The only exception is that an employer in good faith can challenge the majority status of the bargaining representative and request proof that it does in fact have such status. Cf. Joy Silk Mills v. National Labor Relations Board, 87 U.S.App.D.C. 360, 369, 185 F.2d 732, 741.
4
J. I. Case Co. v. National Labor Relations Board, 321 U.S. 332, 64 S.Ct. 576, 88 L.Ed. 762; H. J. Heinz Co. v. National Labor Relations Board, 311 U.S. 514, 525, 61 S.Ct. 320, 325, 85 L.Ed. 309.
5
National Licorice Co. v. National Labor Relations Board, 309 U.S. 350, 360, 60 S.Ct. 569, 575, 84 L.Ed. 799; Inland Steel Co. v. National Labor Relations Board, 7 Cir., 170 F.2d 247, 252; National Labor Relations Board v. Bachelder, 7 Cir., 120 F.2d 574, 577.
| 67
|
343 U.S. 414
72 S.Ct. 843
96 L.Ed. 1042
PENNSYLVANIA WATER & POWER CO. et al.v.FEDERAL POWER COMMISSION et al. PENNSYLVANIA PUBLIC UTILITY COMMISSION v. FEDERAL POWER COMMISSION.
Nos. 428, 429.
Argued April 3 and 4, 1952.
Decided May 26, 1952.
[Syllabus from pages 414-415 intentionally omitted]
[415]
Mr. Wilkie Bushby, New York City, for Pennsylvania Water & Power Co. et al.
Mr. William J. Grove, Harrisburg, Pa., for Pennsylvania Public Utility Commn.
Mr. Philip B. Perlman, Sol. Gen., Washington, D.C., for Federal Power Commn.
Mr. Alfred P. Ramsey, Baltimore, Md., for Consolidated Gas Electric Lt. & Power Co. of Baltimore.
Mr. Charles D. Harris, Baltimore, Md., for Public Service Commn. of Maryland.
Mr. Justice BLACK delivered the opinion of the Court.
1
In 1944 the Maryland Public Service Commission, the Mayor and Council of the City of Baltimore, the Baltimore County Commissioners, and several private purchasers of electric power decided to ask the Federal Power Commission for help. They requested the Commission to investigate allegedly 'excessive rates' the Pennsylvania Water & Power Company (Penn Water)1 was charging Consolidated Gas Electric Light and Power Company of Baltimore (Consolidated). The Maryland interests wanted the Federal Power Commission to reduce these charges so that the state commission could lower Consolidated's rates to its Maryland customers. The federal Commission held many months of extensive hearings and found that Penn Water had charged its customers almost three times what it should have in 1946. In that year it had a net operating income of $3,477,408, as contrasted with $1,300,672 which the Commission found would have been a fair return (5 1/4%) on a fair rate base ($24,774,712), allowing Penn Water 'about 8.64% for common stock and surplus, which is adequate.'2 The Commission ordered Penn Water to file a new schedule of rates and charges to bring about the reductions required.
2
In subsequent orders the Commission denied Penn Wate's applications for rehearing, rejected as insufficient new rate schedules filed by Penn Water, and itself prescribed the rate schedules which Penn Water here seeks to avoid. On review the Court of Appeals gave full consideration to Penn Water's multitudinous challenges and approved the Commission's action, one Judge dissenting. 89 U.S.App.D.C. 235, 193 F.2d 230.
3
Most of the numerous questions presented and decided by the Commission and the Court of Appeals are not presented here by the petitions for certiorari which we granted.3 We are not called on to review the adequacy of the evidence to support the Commission's findings as to a fair rate base, a fair rate of return, or any other findings except insofar as our decision of several rather general questions presented might indirectly undermine some of them. The questions we must decide are in general these:
4
(1) Does the fact that Penn Water is a licensee under Part I of the Federal Power Act,4 and therefore subject to regulation under that Part, preclude its regulation under Part II of the Act as a public utility engaged in interstate commerce?
5
'(2) Assuming that Penn Water can be subjected to regulation under both Parts of the Act, were the Commission and the Court of Appeals correct in holding that all of Penn Water's sales at wholesale were 'in interstate commerce' within the meaning of Part II of the Act?
6
(3) Does the Commission's rate reduction action compel the continuance of, or is it improperly based upon contractual agreements between Penn Water and Consolidated which Penn Water cannot carry out without violating the federal antitrust laws or the laws of Pennsylvania forbidding surrender by Pennsylvania corporations of their corporate independence?
I.
7
Although Penn Water is the type of 'public utility' subject to regulation under Part II of the Act, it argues that since it is subject to regulation under Part I as a licensee, it cannot be regulated under Part II as a public utility. We cannot agree. With some express exceptions not here relevant, the language of Part II of the Act makes all 'public utilities' subject to the regulation it prescribes. No reason has been advanced which could possibly justify a judicial exception to this statutory command. A major purpose of the whole Act is to protect power consumers against excessive prices.5 Part I leaves regulation to the states under some circumstances. But, under § 20 of Part I the Federal Government is to protect the consumer if a state regulatory body does not exist or the 'States are unable to agree * * * on the services to be rendered, or on the rates or charges of payment therefor * * *.' Part II proceeds on the assumption that regulation of public utilities transmitting and selling power at wholesale in interstate commerce is a matter which must be accomplished by the Federal Government. Part II therefore provides for a more expansive federal regulation than that authorized under Part I. It would hinder, not help, the Power Act's program if we should impliedly exempt Part I licensees from the more expansive Part II regulation. It may be possible that some future cases will develop minor inconsistencies in the administration of the two Parts. Today's case, however, is not such a one. We hold that Penn Water is subject to regulation under Part II of the Act. It is also subject to Part I regulation since the Commission found on substantial evidence, as the court below held, that the States were 'unable to agree' within the meaning of § 20 of Part I of the Act.
II.
8
It is contended that some of Penn Water's sales at wholesale were not 'in interstate commerce' and therefore were not subject to federal regulation under Part II. This contention refers to sales made by Penn Water in Pennsylvania to Pennsylvania customers. These are alleged to include about 83% of Pennsylvania generated power. Because of the following circumstances we agree with the Commission and the Court of Appeals that these sales were 'in interstate commerce.'
9
Penn Water and Safe Harbor Water Power Corporation (Safe Harbor) have hydrogenerating plants on the Susquehanna River in Pennsylvania. Consolidated operates large steam-generating plants in Baltimore. The flow of the Susquehanna varies greatly even from day to day. During periods of low flow, Penn Water receives steam-generated energy from Baltimore in order to meet its power supply commitments. Conversely, during periods of high flow, Consolidated is able to receive the cheaper hydroelectric power from Penn Water and Safe Harbor. For many years Penn Water, Consolidated, and Safe Harbor have been operating under contracts for the coordinated sale and distribution of electric power in Maryland and Pennsylvania. A complete integration and pooling of the power producing and transmitting facilities of the three companies was thus achieved. With reference to this coordinated system of production and distribution, the Commission said:
10
'The central fact disclosed by the record about Penn Water's sales in Pennsylvania is that they are not sales of the output of Penn Water's own plant, but sales of output of the integrated and coordinated interstate electric system of which Penn Water's facilities are an integral part. * * *
11
'In this manner energy crossing the State boundary, with other system energy, is used to fulfill system requirements. There result times when system energy generated in Pennsylvania is used, mixed or unmixed, in meeting system requirements in Maryland. Similarly, there are occasions when system energy from Maryland is used, mixed or unmixed, in meeting system requirements in Pennsylvania. Energy flows in, across, and out of the system transmission network as the needs of the interconnected members develop from minute to minute and day to day.
12
'It is accordingly evident that the operations of the unified system enterprise are completely interstate in character, notwithstanding the fact that system energy transactions at some particular times may involve energy never crossing the State boundary.' 8 F.P.C. 1, 12, 15.
13
We hold that the Federal Power Commission has complete authority to regulate all of this commingled power flow.6 The Commission's power does not vary with the rise and fall of the Susquehanna River.
III.
14
Penn Water contends that the Commission's orders improperly require it to continue performing an illegal contract and that continued performance of this contract is the basis for some of the Commission's findings. This contract allegedly requires Penn water to subject the management of its business affairs to the domination of Consolidated and for this reason violates the federal antitrust laws and the corporation laws of Pennsylvania under which Penn Water is incorporated. In private litigation, the Court of Appeals for the Fourth Circuit has agreed with Penn Water that certain provisions of the contract are illegal for the reasons stated. Viewing these provisions as inseparable, that court held the entire contract unenforceable.7
15
We need not now decide the question much argued here concerning what, if any, power the Commission has to rely on or to compel parties to carry out private contracts which would otherwise be illegal; the Commission has not attempted to exercise such power in this case. It is true that Penn Water must continue to do some of the things it used to do in compliance with the Penn Water-Consolidated contract. For under the present schedules prescribed by the Commission's order Penn Water must continue to buy, sell, and transmit power in the same coordinated manner in which it and Consolidated have been functioning for more than twenty years. But the Commission's order, as construed by the Commission, by the Court of Appeals and by us, neither expressly nor impliedly requires Penn Water to yield to any contractual terms subjecting it to the control of Consolidated. In the highly unlikely event that Penn Water's managerial freedom is ever threatened by such an order, it will be time enough to consider its validity. To the extent that Penn Water is being controlled, it is by the Commission, acting under statutory authority, not by Consolidated, acting under the authority of private contract terms 'legalized' by the Commission. The duty of Penn Water to continue its coordinated operations with Consolidated springs from the Commission's authority, not from the law of private contracts.
16
Nor has the Commission premised any of its findings upon the assumed existence and continuation of this contract. Penn Water first made this contention to the Commission in seeking a rehearing of the Commission's order directing a reduction in its rates. At that time the Commission fully re-examined its former opinion, findings and orders, modified some and reaffirmed and strengthened others, and expressly stated that the validity of its order was not dependent upon the legality of the contract. It said: 'If there are questions as to legality of the foundation contracts which are in litigation, as respondents' application for rehearing indicates, the validity of our order is not dependent upon the decision of those questions.' 8 F.P.C. 170, 175. We agree with the Court of Appeals that neither the order nor the findings were premised on the continuation of the Penn Water-Consolidated contract.
17
The Act gives the Commission ample statutory power to order Penn Water and Consolidated to continue their long-existing operational 'practice' of integrating their power output. Section 206 provides that 'Whenever the Commission, after a hearing * * * shall find that any rate * * * is unjust, unreasonable * * * the Commission shall determine the just and reasonable rate, * * * practice, or contract to be thereafter observed and in force, and shall fix the same by order.' In ordering such 'practice' continued, the Commission was furthering the expressly declared policy of the Act. Moreover, the Commission found here ready-made by prior contractual arrangements a regional coordination of power facilities of precisely the type which the Commission is authorized to require under § 202. Section 202(a) declares:
18
'For the purpose of assuring an abundant supply of electric energy throughout the United States with the greatest possible economy and with regard to the proper utilization and conservation of natural resources, the Commission is empowered and directed to divide the country into regional districts for the voluntary interconnection and coordination of facilities for the generation, transmission, and sale of electric energy, * * *.'
19
The Commission was further directed in that section to 'promote and encourage' such interconnection and coordination. Under certain circumstances § 202(b) authorizes the Commission to compel interconnection and coordination in the public interest, and to 'prescribe the terms and conditions of the arrangement to be made between the persons affected by any such order, including the apportionment of cost between them and the compensation or reimbursement reasonably due to any of them.'
20
If Penn Water wishes to discontinue some or all of the services it has rendered for the past twenty years, the Act, as the Commission pointed out, opens up a way provided Penn Water can prove that its wishes are consistent with the public interest. Shortly after Part II of the Power Act was passed in 1935, Penn Water, as required by § 205(c), filed with the Commission the contract here attacked and then designated by the Commission as 'Penn Water's Federal Power Commission Rate Schedule No. 1.' Section 205(d) provides that 'no change shall be made by any public utility in any such * * *service * * * or contract relating thereto, except after thirty days' notice to the Commission and to the public.' Here instead of following the procedure for changing existing services and practices—a procedure which the Congress has authorized and which the Commission has supplemented by rules of its own—the company has rather tried to utilize a violation of the Sherman Act, 15 U.S.C.A. § 1 et seq., so as to nullify a rate-reduction order.
21
Nothing whatever has been presented by Penn Water to show that the end result of this rate reduction is unjust or unreasonable. Cf. Federal Power Comm. v. Hope Gas Co., 320 U.S. 591, 603 64 S.Ct. 281, 288, 88 L.Ed. 333.
22
Affirmed.
23
Mr. Justice FRANKFURTER, not having heard the argument, owing to illness, took no part in the disposition of these cases.
24
Mr. Justice DOUGLAS, with whom Mr. Justice REED concurs, dissenting.
25
There is more to these cases than meets the eye. On the surface they seem to be only an illustration of the exploitation of the public by a utility through the charging of excessive rates. But far greater issues lurk in the record. There is lawless conduct that overshadows the evils of extortionate rates. It is lawless conduct that violates the Sherman Act. It implicates not only the utilities but the regulatory agency as well. The desire to reduce excessive rates should not blind us to the greater evil. It is far better that one public utility win one more legal skirmish in its struggle against regulation, than that we abandon legal standards and let the regulatory agency run riot.
26
We start here with the exploitation of the public through an unholy alliance between two public utility companies—Penn Water and Consolidated. That alliance has been condemned by the Court of Appeals for the Fourth Circuit. See 184 F.2d 552; 194 F.2d 89. The alliance was illegal because it violated the Sherman Act. It was an arrangement that permitted Penn Water to be operated as though it were a department of Consolidated. All competition between the two companies was destroyed, as evidenced by the fact that in 1948 Consolidated vetoed a steam electric generating plant to be built by Penn Water at Holtwood, Pennsylvania. What Penn Water may do, the revenues it receives, the costs it will incur are largely determined by Consolidated under these illegal contracts.
27
The Commission in its opinion on rehearing said, 'If there are questions as to the legality of the foundation contracts which are in litigation, as respondents' application for rehearing indicates, the validity of our order is not dependent upon the decision of those questions. In our opinion and order we took care to leave the continuation of the operation of the integrated and interconnected system in full effect, merely changing the rates, * * *.' (Italics added.) 8 F.P.C. 170, 175. The Commission has accordingly approved the unholy alliance. It has allowed Consolidated to continue to manage Penn Water as though the latter were its alter ego. It is therefore disingenuous for the Court to say that hereafter Penn Water is subject to control by the Commission, not by Consolidated, and that the Commission did not premise any of its findings on the assumed existence and continuation of the illegal contracts.* No matter how vehement our denial, the truth is that the Commission has laced Penn Water to Consolidated under a management contract that leaves Penn Water no initiative of private management.
28
Of course the Commission has authority under § 202 of the Federal Power Act to promote and at times compel interconnection and coordination of the facilities of public utility companies. But I know of no power in the Commission that authorizes it to place one company on the back of another company, to merge and consolidate companies as it chooses, or to give the management of one company a veto power over the management of a competitor. Those are practices which the Sherman Act condemns, and which nothing in the Federal Power Act sanctions.
29
These cases should be reversed and remanded to the Commission with directions that the Commission build its rate order on the powers that it has under the Federal Power Act, not on the unholy alliance that these utilities created and that the Commission has sought to perpetuate.
1
Penn Water, as used in this opinion, refers to both Pennsylvania Water & Power Company and its wholly owned affiliate, Susquehanna Transmission Company of Maryland.
2
There was evidence before the Commission that from 1936 through 1945 Penn Water's dividends on its common stock had never been less than 25% of the cash paid in on the stock.
3
342 U.S. 931, 72 S.Ct. 375.
4
41 Stat. 1063, 49 Stat. 838, 16 U.S.C. § 791a et seq., 16 U.S.C.A. § 761a et seq.
5
Section 20 of Part I provides that 'the rates charged and the service rendered * * * shall be reasonable, nondiscriminatory, and just to the customer * * *.' Section 205(a) of Part II provides that 'All rates and charges * * * shall be just and reasonable * * *.'
6
See also Safe Harbor Water Power Corp. v. Federal Power Commission, 3 Cir., 179 F.2d 179, affirming 5 F.P.C. 221.
7
Pennsylvania W. & P. Co. v. Consolidated G., E.L. & P. Co., 4 Cir., 184 F.2d 552. See also Consolidated Gas E.L. & P. Co. v. Pennsylvania W. & P. Co., 4 Cir., 194 F.2d 89.
*
The Commission entered its final order in the cases prior to the decision of the Court of Appeals in the Sherman Act litigation. The Commission opinion on rehearing hearing was dated February 26, 1949, while the first decision of the Court of Appeals was on September 30, 1950.
| 78
|
343 U.S. 541
72 S.Ct. 834
96 L.Ed. 1130
STEMBRIDGEv.STATE OF GEORGIA.
No. 474.
Argued April 22, 1952.
Decided May 26, 1952.
Mr. Marion W. Stembridge, pro se.
Mr. M. H. Blackshear, Jr., Atlanta, Ga., for respondent.
Mr. Justice MINTON delivered the opinion of the Court.
1
Petitioner was convicted of voluntary manslaughter for the fatal shooting of an eighteen-year-old woman in an altercation growing out of a business transaction. A second woman was wounded in the affray. At his trial, petitioner claimed that he killed the deceased in self-defense. The jury obviously did not believe him or it would not have found him guilty of voluntary manslaughter. He appealed to the Court of Appeals of Georgia which affirmed the conviction on July 12, 1950. Stembridge v. State, 82 Ga.App. 214, 60 S.E.2d 491. Certiorari to the Supreme Court of Georgia was denied.
2
Petitioner thereafter filed in the trial court what he called an 'Extraordinary Motion for New Trial.' This motion alleged that after the appellate proceedings above mentioned, petitioner for the first time, to wit, September, 1950, discovered new evidence which, had he known of and been able to use, would have resulted in his acquittal. He supported the motion with affidavits of ten of the jurors in the case stating that had this evidence been before them, they 'would have never agreed to any verdict except one of not guilty * * *.'
3
The newly discovered evidence consisted of a conflict between a written statement made by Mrs. Mary Harrison, the other woman who was shot in the affray, and her testimony at the trial. Petitioner could not contend that he was unaware of the existence of this statement because the police investigator who recorded it was cross-examined at length about the statement and its contents by petitioner's counsel at the trial. Petitioner claims only that he did not know of the conflict between the statement and Mrs. Harrison's testimony at the trial until after the trial was over. The statement was made by Mrs. Harrison in the hospital, shortly after she was shot. It is not sworn to. At least, there is no jurat exhibited as a part thereof. This statement, often referred to as a dying declaration, and the copy thereof remained at all times in the hands of the police. Since Mrs. Harrison did not die, the State could not use the statement as a dying declaration. Ga.Code, § 38—307 (1933).
4
The motion alleges that at petitioner's trial, Mrs. Harrison testified that he 'did go into the third room of the house and that he did shoot Emma Johnekin after he had already wounded her in the front of the house, and after she had seated herself on a trunk in this rear room.' The house where the shooting occurred consisted of three rooms, in line from front to rear, and a kitchen. The statement made by Mrs. Harrison while in the hospital, which is allegedly in conflict with her testimony, was 'and Emma (deceased) never got out of the front bed room until after the men (Stembridge and Terry) had already gone.'
5
This motion for a new trial based on newly discovered evidence was denied by the trial court. The Court of Appeals affirmed on the ground that the evidence was impeaching only and under the Georgia Code, § 70—204, was not the basis for the granting of a new trial. Stembridge v. State, 84 Ga.App. 413, 415 416, 65 S.E.2d 819, 821. This judgment was entered June 5, 1951.
6
Petitioner then filed a motion for rehearing in the Court of Appeals and for the first time attempted to raise the question of his federal constitutional rights under the Fourteenth Amendment. He contended that he had been denied equal protection and due process in that the State had used Mrs. Harrison's testimony to obtain his conviction with knowledge that it was perjured. The motion for rehearing was denied July 17, 1951, in these words: 'Upon consideration of the motion for a rehearing filed in this case, it is ordered that it be hereby denied.' On September 12, 1951, the Supreme Court of Georgia denied certiorari without opinion. On September 17, 1951, the Court of Appeals, at petitioner's request, stayed the remittitur for ninety days to enable him to apply to this Court for certiorari.
7
On October 22, 1951, petitioner sought and obtained from the Court of Appeals of Georgia an amendment of the record in the following words:
8
'In the consideration by this court of the rehearing which raised the Federal question that 'the placing in this case, by the State, of evidence known to be perjured seeks to deprive plaintiff in error of liberty without due process of law in violation of Section 2—103 of the Constitution of Georgia and in violation of the 14th Amendment to the Constitution of the United States,' this court considered the constitutional question thus raised and decided it against the contentions of the plaintiff in error. In so doing this court considered Sec. 110—706 of the Code of Georgia of 1933 which provides as follows: 'Any judgment, verdict, rule or order of court, which may have been obtained or entered up, shall be set aside and be of no effect, if it shall appear that the same was entered up in consequence of corrupt and wilful perjury; and it shall be the duty of the court in which such verdict, judgment, rule or order was obtained or entered up to cause the same to be set aside upon motion and notice to the adverse party; but it shall not be lawful for the said court to do so, unless the person charged with such perjury shall have been thereof duly convicted, and unless it shall appear to the said court that the said verdict, judgment, rule or order could not have been obtained and entered up without the evidence of such perjured person, saving always to third persons innocent of such perjury the rights which they may lawfully have acquired under such verdict, judgment, rule, or order before the same shall have been actually vacated and set aside'; and Burke v. State, 205 Ga. 656, et seq. (54 S.E.2d 350) which is a decision of the Supreme Court of this State and is therefore binding on this Court, and in which the Constitutional question raised by the plaintiff in error was decided adversely to his contentions. The decision of this Court on the rehearing in question being adverse to the plaintiff in error necessarily brought into consideration the question of whether the rights of the plaintiff in error as guaranteed to him under the 14th Amendment to the Constitution of the United States had been violated, and such decision necessarily determined that such rights had not been so violated. The decision by this court denying the rehearing necessarily determined that the action of the Solicitor General as shown by the record did not deprive the plaintiff in error of any rights guaranteed to him under the 14th Amendment of the Constitution of the United States; also the decision of this court necessarily applied the Fourteenth Amendment to the Constitution of the United States to Sec. 110—706 of the Code of Georgia of 1933 and decided that its application in this case did not amount to an abridgement of any of the rights of the plaintiff in error guaranteed to him under the 14th Amendment to the Constitution of the United States; and also that this Court necessarily considered Burke v. State, 205 Ga. 656, (54 S.E.2d 350) which is a decision of the Supreme Court of this State by which this Court is bound and which must be followed by this Court, the effect of which is to hold that it does not abridge any of the rights of the plaintiff in error guaranteed to him under the 14th Amendment to the Constitution of the United States.'
9
Review of this amending order, which purported to pass upon the constitutional question raised in the motion for rehearing, was not sought in the Supreme Court of Georgia. Instead, certiorari was sought here and granted. 342 U.S. 940, 72 S.Ct. 552.
10
First, since the Supreme Court of Georgia, which was the highest court of the state in which a decision could be had in this case, was not asked to pass upon and did not pass upon the purported amending order, we have no occasion to consider its effect.
11
Secondly, at the time the petition for certiorari was denied by the Supreme Court of Georgia, there appeared in the petition the following recital:
12
'This judgment and decision of the Court of Appeals in this case in failing and refusing to decide applicant's case in accordance with Sec. 2—3708 of the Constitution of Georgia also violates article 1, sec. 1, par. 3 of the Constitution of Georgia (Code § 2—103) and the Fourteenth Amendment to the Constitution of the United States (Code Sec. 1—815); both of which sections provide that no person shall be deprived of his liberty without due process of law; and article 1, sec. 1, par. 2, of the Constitution of the State of Georgia and the Fourteenth Amendment to the Constitution of the United States (Code § 1—815), guaranteeing to all persons equal protection of the law.'
13
It is apparent from the record that the Supreme Court of Georgia took no action upon the question of federal constitutional rights raised for the first time on the motion for rehearing in the Court of Appeals. This was in accord with its rule that constitutional questions must first be raised in the trial court. Beckmann v. Atlantic Ref. Co., 181 Ga. 456, 182 S.E. 595. The attempt to raise the question of constitutional rights in the general terms of the above quotation from the petition for certiorari did not begin to meet the requirement of the Supreme Court of Georgia for definiteness. Persons v. Lea, 207 Ga. 384, 61 S.E.2d 832.
14
At this stage, the Supreme Court of Georgia could have denied certiorari on adequate state grounds. Where the highest court of the state delivers no opinion and it appears that the judgment might have rested upon a nonfederal ground, this Court will not take jurisdiction to review the judgment. Hedgebeth v. State of North Carolina, 334 U.S. 806, 68 S.Ct. 1185, 92 L.Ed. 1739; Woods v. Nierstheimer, 328 U.S. 211, 66 S.Ct. 996, 90 L.Ed. 1177; White v. Ragen, 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348; McGoldrick v. Gulf Oil Corp., 309 U.S. 2, 60 S.Ct. 375, 84 L.Ed. 536; Woolsey v. Best, 299 U.S. 1, 57 S.Ct. 2, 81 L.Ed. 3; Lynch v. People of New York ex rel. Pierson, 293 U.S. 52, 55 S.Ct. 16, 79 L.Ed. 191; Cuyahoga River Power Co. v. Northern Realty Co., 244 U.S. 300, 303 304, 37 S.Ct. 643, 644, 61 L.Ed. 1153; Adams v. Russell, 229 U.S. 353, 358—362, 33 S.Ct. 846, 848—849, 57 L.Ed. 1224; Allen v. Arguimbau, 198 U.S. 149, 154—155, 25 S.Ct. 622, 624, 49 L.Ed. 990; Johnson v. Risk, 137 U.S. 300, 307, 11 S.Ct. 111, 113, 34 L.Ed. 683; Klinger v. State of Missouri, 13 Wall. 257, 263, 20 L.Ed. 635.
15
The amending order of the Georgia Court of Appeals does not, in our view, change the posture of this case—it does not remove the strong possibility, in light of Georgia law, that the Supreme Court of Georgia might have rested its order on a nonfederal ground. We are without jurisdiction when the question of the existence of an adequate state ground is debatable. Bachtel v. Wilson, 204 U.S. 36, 27 S.Ct. 243, 51 L.Ed. 357.
16
The petition for certiorari was improvidently granted, and the case is dismissed. DP Dismissed.
17
Mr. Justice REED, concurring.
18
While I think the better course would be to affirm the decision of the Georgia courts, I join in the judgment of this Court.
19
Mr. Justice BLACK, Mr. Justice FRANKFURTER and Mr. Justice BURTON, dissent from the dismissal.
| 89
|
343 U.S. 495
72 S.Ct. 777
96 L.Ed. 1098
JOSEPH BURSTYN, Inc.v.WILSON et al.
No. 522.
Argued April 24, 1952.
Decided May 26, 1952.
[Syllabus from 496 intentionally omitted]
Mr. Ephraim S. London, Clendon H. Lee, Milton H. Spiero, and Leonard P. Simpson, New York City, for appellant.
Mr. Charles A. Brind, Jr., Wendell P. Brown, Albany, N.J., for appellees.
Mr. Justice CLARK delivered the opinion of the Court.
1
The issue here is the constitutionality, under the First and Fourteenth Amendments, of a New York statute which permits the banning of motion picture films on the ground that they are 'sacrilegious.' That statute makes it unlawful 'to exhibit, or to sell, lease or lend for exhibition at any place of amusement for pay or in connection with any business in the state of New York, any motion picture film or reel (with specified exceptions not relevant here), unless there is at the time in full force and effect a valid license or permit therefor of the education department * * *.'1 The statute further provides:
2
'The director of the (motion picture) division (of the education department) or, when authorized by the regents, the officers of a local office or bureau shall cause to be promptly examined every motion picture film submitted to them as herein required, and unless such film or a part thereof is obscene, indecent, immoral, inhuman, sacrilegious, or is of such a character that its exhibition would tend to corrupt morals or incite to crime, shall issue a license therefor. If such director or, when so authorized, such officer shall not license any film submitted, he shall furnish to the applicant therefor a written report of the reasons for his refusal and a description of each rejected part of a film not rejected in toto.'2
3
Appellant is a corporation engaged in the business of distributing motion pictures. It owns the exclusive rights to distribute throughout the United States a film produced in Italy entitled 'The Miracle.' On November 30, 1950, after having examined the picture, the motion picture division of the New York education department, acting under the statute quoted above, issued to appellant a license authorizing exhibition of 'The Miracle,' with English subtitles, as one part of a trilogy called 'Ways of Love.'3 Thereafter, for a period of approximately eight weeks, 'Ways of Love' was exhibited publicly in a motion picture theater in New York City under an agreement between appellant and the owner of the theater whereby appellant received a stated percentage of the admission price.
4
During this period, the New York State Board of Regents, which by statute is made the head of the education department,4 received 'hundreds of letters, telegrams, post cards, affidavits and other communications' both protesting against and defending the public exhibition of 'The Miracle.'5 The Chancellor of the Board or Regents requested three members of the Board to view the picture and to make a report to the entire Board. After viewing the film, this committee reported to the Board that in its opinion there was basis for the claim that the picture was 'sacrilegious.' Thereafter, on January 19, 1951, the Regents directed appellant to show cause, at a hearing to be held on January 30, why its license to show 'The Miracle' should not be rescinded on that ground. Appellant appeared at this hearing, which was conducted by the same three-member committee of the Regents which had previously viewed the picture, and challenged the jurisdiction of the committee and of the Regents to proceed with the case. With the consent of the committee, various interested persons and organizations submitted to it briefs and exhibits bearing upon the merits of the picture and upon the constitutional and statutory questions involved. On February 16, 1951, the Regents, after viewing 'The Miracle,' determined that it was 'sacrilegious' and for that reason ordered the Commissioner of Education to rescind appellant's license to exhibit the picture. The Commissioner did so.
5
Appellant brought the present action in the New York courts to review the determination of the Regents.6 Among the claims advanced by appellant were (1) that the statute violates the Fourteenth Amendment as a prior restraint upon freedom of speech and of the press; (2) that it is invalid under the same Amendment as a violation of the guaranty of separate church and state and as a prohibition of the free exercise of religion; and, (3) that the term 'sacrilegious' is so vague and indefinite as to offend due process. The Appellate Division rejected all of appellant's contentions and upheld the Regents' determination. 278 App.Div. 253, 104 N.Y.S.2d 740. On appeal the New York Court of Appeals, two judges dissenting, affirmed the order of the Appellate Division. 303 N.Y. 242, 101 N.E.2d 665. The case is here on appeal. 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2).
6
As we view the case, we need consider only appellant's contention that the New York statute is an unconstitutional abridgment of free speech and a free press. In Mutual Film Corp. v. Industrial Comm. of Ohio, 1915, 236 U.S. 230, 35 S.Ct. 387, 59 L.Ed. 552, a distributor of motion pictures sought to enjoin the enforcement of an Ohio statute which required the prior approval of a board of censors before any motion picture could be publicly exhibited in the state, and which directed the board to approve only such films as it adjudged to be 'of a moral, educational, or amusing and harmless character.' The statute was assailed in part as an unconstitutional abridgment of the freedom of the press guaranteed by the First and Fourteenth Amendments. The District Court rejected this contention, stating that the first eight Amendments were not a restriction on state action. D.C.N.D.Ohio 1914, 215 F. 138, 141. On appeal to this Court, plaintiff in its brief abandoned this claim and contended merely that the statute in question violated the freedom of speech and publication guaranteed by the Constitution of Ohio. In affirming the decree of the District Court denying injunctive relief, this Court stated:
7
'It cannot be put out of view that the exhibition of moving pictures is a business, pure and simple, originated and conducted for profit, like other spectacles, not to be regarded, nor intended to be regarded by the Ohio Constitution, we think, as part of the press of the country, or as organs of public opinion.'7
8
In a series of decisions beginning with Gitlow v. People of State of New York, 1925, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138, this Court held that the liberty of speech and of the press which the First Amendment guarantees against abridgment by the federal government is within the liberty safeguarded by the Due Process Clause of the Fourteenth Amendment from invasion by state action.8 That principle has been followed and reaffirmed to the present day. Since this series of decisions came after the Mutual decision, the present case is the first to present squarely to us the question whether motion pictures are within the ambit of protection which the First Amendment, through the Fourteenth, secures to any form of 'speech' or 'the press.'9
9
It cannot be doubted that motion pictures are a significant medium for the communication of ideas. They may affect public attitudes and behavior in a variety of ways, ranging from direct espousal of a political or social doctrine to the subtle shaping of thought which characterizes all artistic expression.10 The importance of motion pictures as an organ of public opinion is not lessened by the fact that they are designed to entertain as well as to inform. As was said in Winters v. People of State of New York, 1948, 333 U.S. 507, 510, 68 S.Ct. 665, 667, 92 L.Ed. 840:
10
'The line between the informing and the entertaining is too elusive for the protection of that basic right (a free press). Everyone is familiar with instances of propaganda through fiction. What is one man's amusement, teaches another's doctrine.'
11
It is urged that motion pictures do not fall within the First Amendment's aegis because their production, distribution, and exhibition is a large-scale business conducted for private profit. We cannot agree. That books, newspapers, and magazines are published and sold for profit does not prevent them from being a form of expression whose liberty is safeguarded by the First Amendment.11 We fail to see why operation for profit should have any different effect in the case of motion pictures.
12
It is further urged that motion pictures possess a greater capacity for evil, particularly among the youth of a community, than other modes of expression. Even if one were to accept this hypothesis, it does not follow that motion pictures should be disqualified from First Amendment protection. If there be capacity for evil it may be relevant in determining the permissible scope of community control, but it does not authorize substantially unbridled censorship such as we have here.
13
For the foregoing reasons, we conclude that expression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments. To the extent that language in the opinion in Mutual Film Corp. v. Industrial Comm., supra, is out of harmony with the views here set forth, we no longer adhere to it.12
14
To hold that liberty of expression by means of motion pictures is guaranteed by the First and Fourteenth Amendments, however, is not the end of our problem. It does not follow that the Constitution requires absolute freedom to exhibit every motion picture of every kind at all times and all places. That much is evident from the series of decisions of this Court with respect to other media of communication of ideas.13 Nor does it follow that motion pictures are necessarily subject to the precise rules governing any other particular method of expression. Each method tends to present its own peculiar problems. But the basic principles of freedom of speech and the press, like the First Amendment's command, do not vary. Those principles, as they have frequently been enunciated by this Court, make freedom of expression the rule. There is no justification in this case for making an exception to that rule.
15
The statute involved here does not seek to punish, as a past offense, speech or writing falling within the permissible scope of subsequent punishment. On the contrary, New York requires that permission to communicate ideas be obtained in advance from state officials who judge the content of the words and pictures sought to be communicated. This Court recognized many years ago that such a previous restraint is a form of infringement upon freedom of expression to be especially condemned. Near v. State of Minnesota ex rel. Olson, 1931, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357. The Court there recounted the history which indicates that a major purpose of the First Amendment guaranty of a free press was to prevent prior restraints upon publication, although it was carefully pointed out that the liberty of the press is not limited to that protection.14 It was further stated that 'the protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases.' Id., 283 U.S. at page 716, 51 S.Ct. at page 631. In the light of the First Amendment's history and of the Near decision, the State has a heavy burden to demonstrate that the limitation challenged here presents such an exceptional case.
16
New York's highest court says there is 'nothing mysterious' about the statutory provision applied in this case: 'It is simply this: that no religion, as that word is understood by the ordinary, reasonable person, shall be treated with contempt, mockery, scorn and ridicule * * *.'15 This is far from the kind of narrow exception to freedom of expression which a state may carve out to satisfy the adverse demands of other interests of society.16 In seeking to apply the broad and all-inclusive definition of 'sacrilegious' given by the New York courts, the censor is set adrift upon a boundless sea amid a myraid of conflicting currents of religious views, with no charts but those provided by the most vocal and powerful orthodoxies, New York cannot vest such unlimited restraining control over motion pictures in a censor. Cf. Kunz v. People of State of New York, 1951, 340 U.S. 290, 71 S.Ct. 312, 328, 95 L.Ed. 267, 280.17 Under such a standard the most careful and tolerant censor would find it virtually impossible to avoid favoring one religion over another, and he would be subject to an inevitable tendency to ban the expression of unpopular sentiments sacred to a religious minority. Application of the 'sacrilegious' test, in these or other respects, might raise substantial questions under the First Amendment's guaranty of separate church and state with freedom of worship for all.18 However, from the standpoint of freedom of speech and the press, it is enough to point out that the state has no legitimate interest in protecting any or all religions from views distasteful to them which is sufficient to justify prior restraints upon the expression of those views. It is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine, whether they appear in publications, speeches, or motion pictures.19
17
Since the term 'sacrilegious' is the sole standard under attack here, it is not necessary for us to decide, for example, whether a state may censor motion pictures under a clearly drawn statute designed and applied to prevent the showing of obscene films. That is a very different question from the one now before us.20 We hold only that under the First and Fourteenth Amendments a state may not ban a film on the basis of a censor's conclusion that it is 'sacrilegious.'
18
Reversed.
19
Mr. Justice REED, concurring in the judgment of the Court.
20
Assuming that a state may establish a system for the licensing of motion pictures, an issue not foreclosed by the Court's opinion, our duty requires us to examine the facts of the refusal of a license in each case to determine whether the principles of the First Amendment have been honored. This film does not seem to me to be of a character that the First Amendment permits a state to exclude from public view.
21
Mr. Justice FRANKFURTER, whom Mr. Justice JACKSON joins, concurring in the judgment of the Court; Mr. Justice BURTON, having concurred in the opinion of the Court, also joins this opinion.
22
A practised hand has thus summarized the story of 'The Miracle':1
23
'A poor, simple-minded girl is tending a herd of goats on a mountainside one day, when a bearded stranger passes. Suddenly it strikes her fancy that he is St. Joseph, her favorite saint, and that he has come to take her to heaven, where she will be happy and free. While she pleads with him to transport her, the stranger gently plies the girl with wine, and when she is in a state of tumult, he apparently ravishes her. (This incident in the story is only briefly and discreetly implied.)
24
'The girl awakens later, finds the stranger gone, and climbs down from the mountain not knowing whether he was real or a dream. She meets an old priest who tells her that it is quite possible that she did see a saint, but a younger priest scoffs at the notion. 'Materialist!' the old priest says.
25
'There follows now a brief sequence—intended to be symbolic, obviously—in which the girl is reverently sitting with other villagers in church. Moved by a whim of appetite, she snitches an apple from the basket of a woman next to her. When she leaves the church, a cackling beggar tries to make her share the apple with him, but she chases him away as by habit and munches the fruit contentedly.
26
'Then, one day, while tending the village youngsters as their mothers work at the vines, the girl faints and the women discover that she is going to have a child. Frightened and bewildered, she suddenly murmurs, 'It is the grace of God!' and she runs to the church in great excitement, looks for th statue of St. Joseph, and then prostrates herself on the floor.
27
'Thereafter she meekly refuses to do any menial work and the housewives humor her gently but the young people are not so kind. In a scene of brutal torment, they first flatter and laughingly mock her, then they cruelly shove and hit her and clamp a basin as a halo on her head. Even abused by the beggars, the poor girl gathers together her pitiful rags and sadly departs from the village to live alone in a cave.
28
'When she feels her time coming upon her, she starts back towards the village. But then she sees the crowds in the streets; dark memories haunt her; so the turns towards a church on a high hill and instinctively struggles towards it, crying desperately to God. A goat is her sole companion. She drinks water dripping from a rock. And when she comes to the church and finds the door locked, the goat attracts her to a small side door. Inside the church, the poor girl braces herself for her labor pains. There is a dissolve, and when we next see her sad face, in close-up, it is full of a tender light. There is the cry of an unseen baby. The girl reaches towards it and murmurs, 'My son! My love! My flesh!"
29
'The Miracle'—a film lasting forty minutes—was produced in Italy by Roberto Rosselini. Anna Magnani played the lead as the demented goat-tender. It was first shown at the Venice Film Festival in August, 1948, combined with another moving picture, 'L'Umano Voice,' into a diptych called 'Amore.' According to an affidavit from the Director of that Festival, if the motion picture had been 'blasphemous' it would have been barred by the Festival Committee. In a review of the film in L'Osservatore Romano, the organ of the Vatican, its film critic, Piero Regnoli, wrote: 'Opinions may vary and questions may arise—even serious ones—of a religious nature (not to be diminished by the fact that the woman portrayed is mad (because) the author who attributed madness to her is not mad). * * *'2 While acknowledging that there were 'passages of undoubted cinematic distinction,' Regnoli criticized the film as being 'on such a pretentiously cerebral plane that it reminds one of the early d'Annunzio.' The Vatican newspaper's critic concluded: 'we continue to believe in Rosselini's art and we look forward to his next achievement.'3 In October, 1948, a month after the Rome premiere of 'The Miracle,' the Vatican's censorship agency, the Catholic Cinematographic Centre, declared that the picture 'constitutes in effect an abominable profanation from religious and moral view-points.'4 By the Lateran agreements and the Italian Constitution the Italian Government is bound to bar whatever may offend the Catholic religion. However, the Catholic Cinematographic Centre did not invoke any governmental sanction thereby afforded. The Italian Government's censorship agency gave 'The Miracle' the regular nulla osta clearance. The film was freely shown throughout Italy, but was not a great success.5 Italian movie critics divided in opinion. The critic for Il Popolo, speaking for the Christian Democratic Party, the Catholic party, profusely praised the picture as 'a beautiful thing, humanly felt, alive, true and without religious profanation as someone has said, because in our opinion the meaning of the characters is clear and there is no possibility of misunderstanding.'6 Regnoli again reviewed 'The Miracle' for O'Osservatore Romano.7 After criticising the film fro technical faults, he found 'the most courageous and interesting passage of Rosselini's work' in contrasting portrayals in the film; he added: 'Unfortunately, concerning morals, it is necessary to note some slight defects.' He objected to its 'carnality' and to the representation of illegitimate motherhood. But he did not suggest that the picture was 'sacrilegious.' The tone of Regnoli's critique was one of respect for Rosselini, 'the illustrious Italian producer.'8
30
On March 2, 1949, 'The Miracle' was licensed in New York State for showing without English subtitles.9 However, it was never exhibited until after a second license was issued on November 30, 1950, for the trilogy, 'Ways of Love,' combining 'The Miracle' with two French films, Jean Renoir's 'A Day in the Country' and Marcel Pagnol's 'Jofroi.'10 All had English subtitles. Both liMotion Picture Division of the New York State Education Department. The Division is directed by statute to 'issue a license' 'unless (the) film or a part thereof is obscene, indecent, immoral, inhuman, sacrilegious, or is of such a character that its exhibition would tend to corrupt morals or incite to crime.' N.Y. Education Law, § 122. The trilogy opened on December 12, 1950, at the Paris Theatre on 58th Street in Manhattan. It was promptly attacked as 'a sacrilegious and blasphemous mockery of Christian religious truth'11 by the National Legion of Decency, a private Catholic organization for film censorship, whose objectives have intermittently been approved by various non-Catholic church and social groups since its formation in 1933.12 However, the National Board of Review (a nonindustry lay organization devoted to raising the level of motion pictures by mobilizing public opinion, under the slogan 'Selection Not Censorship')13 recommended the picture as 'especially worth seeing.' New York critics on the whole praised 'The Miracle'; those who dispraised did not suggest sacrilege.14 On December 27 the critics selected the 'Ways of Love' as the best foreign language film in 1950.15 Meanwhile, on December 23, Edward T. McCaffrey, Commissioner of Licenses for New York city, declared the film 'officially and personally blasphemous' and ordered it withdrawn at the risk of suspension of the license to operate the Paris Theatre.16 A week later the program was restored at the theatre upon the decision by the New York Supreme Court that the City License Commissioner had exceeded his authority in that he was without powers of movie censorship.17
31
Upon the failure of the License Commissioner's effort to cut off showings of 'The Miracle,' the controversy took a new turn. On Sunday, January 7, 1951, a statement of His Eminence, Francis Cardinal Spellman, condemning the picture and calling on 'all right thinking citizens' to unite to tighten censorship laws, was read at all masses in St. Patrick's Cathedral.18
32
The views of Cardinal Spellman aroused dissent among other devout Christians. Protestant clergymen, representing various denominations, after seeing the picture, found in it nothing 'sacrilegious or immoral to the views held by Christian men and women,' and with a few exceptions agreed that the film was 'unquestionably one of unusual artistic merit.'19
33
In this estimate some Catholic laymen concurred.20 Their opinion is represented by the comment by Otto L. Spaeth, Director of the American Federation of Arts and prominent in Catholic lay activities:
34
'At the outbreak of the controversy, I immediately arranged for a private showing of the film. I invited a group of Catholics, competent and respected for their writings on both religious and cultural subjects. The essential approval of the film was unanimous.
35
'There was indeed 'blasphemy' in the picture—but it was the blasphemy of the villagers, who stopped at nothing, not even the mock singing of a hymn to the Virgin, in their brutal badgering of the tragic woman. The scathing indictment of their evil behavior, implicit in the film, was seemingly overlooked by its critics.'21
36
William P. Clancy, a teacher at the University of Notre Dame, wrote in The Commonweal, the well-known Catholic weekly, that 'the film is not obviously blasphemous or obscene, either in its intention or execution.'22 The Commonweal itself questioned the wisdom of transforming Church dogma which Catholics may obey as 'a free act' into state-enforced censorship for all.23 Allen Tate, the well-known Catholic poet and critic, wrote: 'The picture seems to me to be superior in acting and photography but inferior dramatically. * * * In the long run what Cardinal Spellman will have succeeded in doing is insulting the intelligence and faith of American Catholics with the assumption that a second-rate motion picture could in any way undermine their morals or shake their faith.'24
37
At the time 'The Miracle' was filmed, all the persons having significant positions in the production—producer, director, and cast—were Catholics. Roberto Rosselini, who had Vatican approval in 1949 for filming a life of St. Francis, using in the cast members of the Franciscan Order, cabled Cardinal Spellman protesting against boycott of 'The Miracle':
38
'In The Miracle men are still without pity because they still have not come back to God, but God is already present in the faith, however, confused, of that poor, persecuted woman; and since God is wherever a human being suffers and is misunderstood, The Miracle occurs when at the birth of the child the poor, demented woman regains sanity in her maternal love.'25
39
In view of the controversy thus aroused by the picture, the Chairman of the Board of Regents appointed a committee of three Board members to review the action of the Motion Picture Division in granting the two licenses. After viewing the picture on Jan. 15, 1951, the committee declared it 'sacrilegious.' The Board four days later issued an order to the licensees to show cause why the licenses should not be cancelled in that the picture was 'sacrilegious.' The Board of Regents rescinded the licenses on Feb. 16, 1951, saying that the 'mockery or profaning of these beliefs that are sacred to any portion of our citizenship is abhorrent to the laws of this great State.' On review the Appellate Division upheld the Board of Regents, holding that the banning of any motion picture 'that may fairly be deemed sacrilegious to the adherents of any religious group * * * is directly related to public peace and order' and is not a denial of religious freedom, and that there was 'substantial evidence upon which the Regents could act.' 278 App.Div. 253, 257, 258, 260, 104 N.Y.S.2d 740, 743, 744—745, 747.
40
The New York Court of Appeals, with one judge concurring in a separate opinion and two others dissenting, affirmed the order of the Appellate Division. 303 N.Y. 242, 101 N.E.2d 665. After concluding that the Board of Regents acted within its authority and that its determination was not 'one that no reasonable mind could reach', id., 303 N.Y. at pages 250—255, 256—257, 101 N.E.2d at pages 665, 667, 670—671, the majority held, first, that 'sacrilegious' was an adequately definite standard, quoting a definition from Funk & Wagnalls' Dictionary and referring to opinions in this Court that in passing used the term 'profane,' which the New York court said was a synonym of 'sacrilegious'; second, that the State's assurance 'that no religion * * * shall be treated with contempt, mockery, scorn and ridicule * * * by those engaged in selling entertainment by way of motion pictures' does not violate the religious guarantee of the First Amendment; and third, that motion pictures are not entitled to the immunities from regulation enjoyed by the press, in view of the decision in Mutual Film Corp. v. Industrial Comm. of Ohio, 236 U.S. 230, 35 S.Ct. 387, 59 L.Ed. 552. Id., 303 N.Y. at pages 255 256, 258—260, 260—262, 101 N.E.2d at pages 670—671, 672—674. The two dissenting judges, after dealing with a matter of local law not reviewable here, found that the standard 'sacrilegious' is unconstitutionally vague, and, finally, that the constitutional guarantee of freedom of speech applied equally to motion pictures and prevented this censorship. 303 N.Y. 242, 264, 101 N.E.2d 665, 675, 676. Both State courts, as did this Court, viewed 'The Miracle.'
41
Arguments by the parties and in briefs amici invite us to pursue to their farthest reach the problems in which this case is involved. Positions are advanced so absolute and abstract that in any event they could not properly determine this controversy. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341, 346 348, 56 S.Ct. 466, 480, 482—483, 80 L.Ed. 688. We are asked to decide this case by choosing between two mutually exclusive alternatives: that motion pictures may be subjected to unrestricted censorship, or that they must be allowed to be shown under any circumstances. But only the tyranny of absolutes would rely on such alternatives to meet the problems generated by the need to accommodate the diverse interests affected by the motion pictures in compact modern communities. It would startle Madison and Jefferson and George Mason, could they adjust themselves to our day, to be told that the freedom of speech which they espoused in the Bill of Rights authorizes a showing of 'The Miracle' from windows facing St. Patrick's Cathedral in the forenoon of Easter Sunday,26 just as it would startle them to be told that any picture, whatever its theme and its expression, could be barred from being commercially exhibited. The general principle of free speech, expressed in the First Amendment as to encroachments by Congress, and included as it is in the Fourteenth Amendment, binding on the States, must be placed in its historical and legal contexts. The Constitution, we cannot recall too often, is an organism, not merely a literary composition.
42
If the New York Court of Appeals had given 'sacrilegious' the meaning it has had in Catholic thought since St. Thomas Aquinas formulated its scope, and had sustained a finding by the Board of Regents that 'The Miracle' came within that scope, this Court would have to meet some of the broader questions regarding the relation to the motion picture industry of the guarantees of the First Amendment so far as reflected in the Fourteenth. But the New York court did not confine 'sacrilegious' within such technical, Thomist limits, nor within any specific, or even approximately specified, limits. It may fairly be said that that court deemed 'sacrilegious' a self-defining term, a word that carries a well-known, settled meaning in the common speech of men.
43
So far as the Court of Appeals sought to support its notion that 'sacrilegious' has the necessary precision of meaning which the Due Process Clause enjoins for statutes regulating men's activities, it relied on this definition from Funk & Wagnalls' Dictionary: 'The act of violating or profaning anything sacred'. But this merely defines by turning an adjective into a noun and bringing in two new words equally undefined. It leaves wide open the question as to what persons, doctrines or things are 'sacred.' It sheds no light on what representations on the motion picture screen will constitute 'profaning' those things which the State censors find to be 'sacred.'
44
To criticize or assail religious doctrine may wound to the quick those who are attached to the doctrine and profoundly cherish it. But to bar such pictorial discussion is to subject non-conformists to the rule of sects.
45
Even in Mutual Film Corp. v. Industrial Comm. of Ohio, 236 U.S. 230, 35 S.Ct. 387, 59 L.Ed. 552, it was deemed necessary to find that the terms 'educational, moral, amusing or harmless' do not leave 'decision to arbitrary judgment'. Such general words were found to 'get precision from the sense and experience of men'. Id., 236 U.S. at pages 245, 246, 35 S.Ct. 387, at page 392. This cannot be said of 'sacrilegious.' If there is one thing that the history of religious conflicts shows, it is that the term 'sacrilegious'—if by that is implied offense to the deep convictions of members of different sects, which is what the Court of Appeals seems to mean so far as it means anything precisely does not gain 'precision from the sense and experience of men'.
46
The vast apparatus of indices and digests, which mirrors our law, affords no clue to a judicial definition of sacrilege. Not one case, barring the present, has been uncovered which considers the meaning of the term in any context. For has the practice under the New York law contributed light. The Motion Picture Division of the Education Department does not support with explanatory statements its action on any specific motion picture, which we are advised is itself not made public. Of the fifty-odd reported appeals to the Board of Regents from denials of licenses by the Division, only three concern the category 'sacrilegious.'27 In these cases, as in others under the Act, the Board's reported opinion confines itself to a bare finding that the film was or was not 'sacrilegious,' without so much as a description of the allegedly offensive matter, or even of the film as a whole to enlighten the inquirer. Well-equipped law libraries are not niggardly in their reflection of 'the sense and experience of men,' but we must search elsewhere for any which gives to 'sacrilege' its meaning.
47
Sacrilege,28 as a restricted ecclesiastical concept, has a long history. Naturally enough, religions have sought to protect their priests and anointed symbols from physical injury.29 But history demonstrates that the term is hopelessly vague when it goes beyond such ecclesiastical definiteness and is used at large as the basis for punishing deviation from doctrine.
48
Etymologically 'sacrilege' is limited to church-robbing: sacer, sacred, and legere, to steal or pick out. But we are told that 'already in Cicero's time it had grown to include in popular speech any insult or injury to (sacred things).'30 'In primitive religions (sacrilege is) inclusive of almost every serious offence even in fields now regarded as merely social or political * * *.'31 The concept of 'tabu' in primitive society is thus close to that of 'sacrilege.'32 And in 'the Theodosian Code the various crimes which are accounted sacrilege include—apostasy, heresy, schism, Judaism, paganism, attempts against the immunity of churches and clergy or privileges of church courts, the desecration of sacraments, etc., and even Sunday. Along with these crimes against religion went treason to the emperor, offences against the laws, especially counterfeiting, defraudation in taxes, seizure of confiscated property, evil conduct of imperial officers, etc.'33 During the Middle Ages the Church considerably delimited the application of the term. St. Thomas Aquinas classified the objects of 'sacrilege' as persons, places, and thing.34 The injuries which would constitute 'SACRILEGE' RECEIVED SPECIFIC AND DETAILED ILLUSTRATION.35 this teaching of Aquinas is, I believe, still substantially the basis of the official Catholic doctrine of sacrilege. Thus, for the Roman Catholic Church, the term came to have a fairly definite meaning, but one, in general, limited to protecting things physical against injurious acts.36 Apostasy, heresy, and blasphemy coexisted as religious crimes alongside sacrilege; they were peculiarly in the realm of religious dogma and doctrine, as 'sacrilege' was not. It is true that Spelman, writing 'The History and Fate of Sacrilege' in 1632, included in 'sacrilege' acts whereby 'the very Deity is invaded, profaned, or robbed of its glory. * * * In this high sin are blasphemers, sorcerers, witches, and enchanters.'37 But his main theme was the 'spoil of church lands done by Henry VIII' and the misfortunes that subsequently befell the families of the recipients of former ecclesiastical property as divine punishment.
49
To the extent that English law took jurisdiction to punish 'sacrilege,' the term meant the stealing from a church, or otherwise doing damage to church property.38 This special protection against 'sacrilege,' that is, property damage, was granted only to the Established Church.39 Since the repeal less than a century ago of the English law punishing 'sacrilege' against the property of the Established Church, religious property has received little special protection. The property of all sects has had substantially the same protection as is accorded non-religious property.40 At no time up to the present has English law known 'sacrilege' to be used in any wider sense than the physical injury to church property. It is true that at times in the past English law has taken jurisdiction to punish departures from accepted dogma or religious practice or the expression of particular religious opinions, but never have these 'offenses' been denominated 'sacrilege.' Apostasy, heresy, offenses against the Established Church, blasphemy, profanation of the Lord's Day, etc., were distinct criminal offenses, characterized by Blackstone as 'offences against God and religion.'41 These invidious reflections upon religious susceptibilities were not covered under sacrilege as they might be under the Court of Appeals' opinion. Anyone doubting the dangerous uncertainty of the New York definition, which makes 'sacrilege' overlap these other 'offenses against religion,' need only read Blackstone's account of the broad and varying content given each of these offenses.
50
A student of English lexicography would despair of finding the meaning attributed to 'sacrilege' by the New York court.42 Most dictionaries define the concept in the limited sense of the physical abuse of physical objects. The definitions given for 'sacrilege' by two dictionaries published in 1742 and 1782 are typical. Bailey's defined it as 'the stealing of Sacred Things, Church Robbing; an Alienation to Laymen, and to profane and common Purposes, of what was given to religious Persons, and to pious Uses.'43 Barclay's said it is 'the crime of taking any thing dedicated to divine worship, or profaning any thing sacred,' where 'to profane' is defined 'to apply any thing sacred to common uses. To be irreverent to sacred persons or things.'44 The same dictionaries defined 'blasphemy,' a peculiarly verbal offense, in much broader terms than 'sacrilege,' indeed in terms which the New York court finds encompassed by 'sacrilegious.' For example, Barclay said 'blasphemy' is 'an offering some indignity to God, any person of the Trinity, any messengers from God, his holy writ, or the doctrines of revelation.'45 It is hardly necessary to comment that the limits of this definition remain too uncertain to justify constraining the creative efforts of the imagination by fear of pains and penalties imposed by a necessarily subjective censorship. It is true that some earlier dictionaries assigned to 'sacrilege' the broader meaning of 'abusing Sacraments or holy Mysteries,'46 but the broader meaning is more indefinite, not less. Noah Webster first published his American Dictionary in 1828. Both it and the later dictionaries published by the Merriam Company, Webster's International Dictionary and Webster's New International Dictionary, have gone through dozens of editions and printings, revisions and expansions. In all editions throughout 125 years, these American dictionaries have defined 'sacrilege' and 'sacrilegious' to echo substantially the narrow, technical definitions from the earlier British dictionaries collected in the Appendix, 343 U.S. 533, 72 S.Ct. 796.47
51
The New York Court of Appeals' statement that the dictionary 'furnishes a clear definition', justifying the vague scope it gave to 'sacrilegious,' surely was made without regard to the lexicographic history of the term. As a matter of fact, the definition from Funk & Wagnalls' used by the Court of Appeals is taken straight from 18th Century dictionaries, particularly Doctor Johnson's.48 In light of that history it would seem that the Funk & Wagnalls' definition uses 'sacrilege' in its historically restricted meaning, which was not, and could hardly have been, the basis for condemning 'The Miracle.' If the New York court reads the Funk & Wagnalls' definition in a broader sense, in a sense for which history and experience provide no gloss, it inevitably left the censor free to judge by whatever dogma he deems 'sacred' and to ban whatever motion pictures he may assume would 'profane' religious doctrine widely enough held to arouse protest.
52
Examination of successive editions of the Encyclopaedia Britannica over nearly two centuries up to the present day gives no more help than the dictionaries. From 1768 to the eleventh edition in 1911, merely a brief dictionary-type definition was given for 'sacrilege.'49 The eleventh edition, which first published a longer article, was introduced as follows: 'the violation or profanation of sacred things, a crime of varying scope in different religions. It is naturally much more general and accounted more dreadful in those primitive religions in which cultural objects play so great a part, than in more highly spiritualized religions where they tend to disappear. But wherever the idea of sacred exists, sacrilege is possible.50 The article on 'sacrilege' in the current edition of the Encyclopaedia Britannica is substantially the same as that in the 1911 edition.
53
History teaches us the indefiniteness of the concept 'sacrilegious' in another respect. In the case of most countries and times where the concept of sacrilege has been of importance there has existed an established church or a state religion. That which was 'sacred,' and so was protected against 'profaning,' was designated in each case by ecclesiastical authority. What might have been definite when a controlling church imposed a detailed scheme of observances becomes impossibly confused and uncertain when hundreds of sects, with widely disparate and often directly conflicting ideas of sacredness, enjoy, without discrimination and in equal measure, constitutionally guaranteed religious freedom. In the Rome of the late emperors, the England of James I, or the Geneva of Calvin, and today in Roman Catholic Spain, Mohammedan Saudi Arabia, or any other country with a monolithic religion, the category of things sacred might have clearly definable limits. But in America the multiplicity of the ideas of 'sacredness' held with equal but conflicting fervor by the great number of religious groups makes the term 'sacrilegious' too indefinite to satisfy constitutional demands based on reason and fairness.
54
If 'sacrilegious' bans more than the physical abuse of sacred persons, places, or things, if it permits censorship of religious opinions, which is the effect of the holding below, the term will include what may be found to be 'blasphemous.' England's experience with that treacherous word should give us pause, apart from our requirements for the separation of Church and State. The crime of blasphemy in Seventeenth Century England was the crime of dissenting from whatever was the current religious dogma.51 King James I's 'Book of Sports' was first required reading in the churches; later all copies were consigned to the flames. To attack the mass was once blasphemous; to perform it became so. At different times during that century, with the shifts in the attitude of government towards particular religious views, persons who doubted the doctrine of the Trinity (e.g., Unitarians, Universalists, etc.) or the divinity of Christ, observed the Sabbath on Saturday, denied the possibility of witchcraft, repudiated child baptism or urged methods of baptism other than sprinkling, were charged as blasphemers, or their books were burned or banned as blasphemous. Blasphemy was the chameleon phrase which meant the criticism of whatever the ruling authority of the moment established as orthodox religious doctrine.52 While it is true that blasphemy prosecutions have continued in England—although in lessening numbers—into the present century,53 the existence there of an established church gives more definite contours to the crime in England that the term 'sacrilegious' can possibly have in this country. Moreover, the scope of the English common-law crime of blasphemy has been considerably limited by the declaration that 'if the decencies of controversy are observed, even the fundamentals of religion may be attacked.'54 a limitation which the New York court has not put upon the Board of Regents' power to declare a motion picture 'sacrilegious.'
55
In Cantwell v. State of Connecticut, 310 U.S. 296, 310, 60 S.Ct. 900, 906, 84 L.Ed. 1213, Mr. Justice Roberts, speaking for the whole Court, said: 'In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor.' Conduct and beliefs dear to one may seem the rankest 'sacrilege' to another. A few examples suffice to show the difficulties facing a conscientious censor or motion picture producer or distributor in determining what the New York statute condemns as sacrilegious. A motion picture portraying Christ as divine—for example, a movie showing medieval Church art—would offend the religious opinions of the members of several Protestant denominations who do not believe in the Trinity, as well as those of a non-Christian faith. Conversely, one showing Christ as merely an ethical teacher could not but offend millions of Christians of many denominations. Which is 'sacrilegious'? The doctrine of transubstantiation, and the veneration of relics or particular stone and wood embodiments of saints or divinity, both sacred to Catholics, are offensive to a great many Protestants, and therefore for them saacrilegious in the view of the New York court. Is a picture treating either subject, whether sympathetically, unsympathetically, or neutrally, 'sacrilegious'? It is not a sufficient answer to say that 'sacrilegious' is definite, because all subjects that in any way might be interpreted as offending the religious beliefs of any one of the 300 sects of the United States55 are banned in New York. To allow such vague, undefinable powers of censorship to be exercised is bound to have stultifying consequences on the creative process of literature and art—for the films are derived largely from literature. History does not encourage reliance on the wisdom and moderation of the censor as a safeguard in the exercise of such drastic power over the minds of men. We not only do not know but cannot know what is condemnable by 'sacrilegious.' And if we cannot tell, how are those to be governed by the statute to tell?
56
It is this impossibility of knowing how far the form of words by which the New York Court of Appeals explained 'sacrilegious' carries the proscription of religious subjects that makes the term unconstitutionally vague.56 To stop short of proscribing all subjects that might conceivably be interpreted to be religious, inevitably creates a situation whereby the censor bans only that against which there is a substantial outcry from a religious group. And that is the fair inference to be drawn, as a matter of experience, from what has been happening under the New York censorship. Consequently the film industry, normally not guided by creative artists, and cautious in putting large capital to the hazards of courage, would be governed by its notions of the feelings likely to be aroused by diverse religious sects, certainly the powerful ones. The effect of such demands upon art and upon those whose function is to enhance the culture of a society need not be labored.
57
To paraphrase Doctor Johnson, if nothing may be shown but what licensors may have previously approved, power, the yea-or-nay-saying by officials, becomes the standard of the permissible. Prohibition through words that fail to convey what is permitted and what is prohibited for want of appropriate objective standards, offends Due Process in two ways. First, it does not sufficiently apprise those bent on obedience of law of what may reasonably be foreseen to be found illicit by the law-enforcing authority, whether court or jury or administrative agency. Secondly, where licensing is rested in the first instance, in an administrative agency, the available judicial review is in effect rendered inoperative. On the basis of such a portmanteau word as 'sacrilegious,' the judiciary has no standards with which to judge the validity of administrative action which necessarily involves, at least in large measure, subjective determinations. Thus, the administrative first step becomes the last step. From all that has been said one is compelled to conclude that the term 'sacrilegious' has come down the stream of time encrusted with a specialized, strictly confined meaning, pertaining to things in space not things in the mind. The New York Court of Appeals did not give the term this calculable content. It applied it to things in the mind, and things in the mind so undefined, so at large, as to be more patently in disregard of the requirement for definiteness, as the basis of proscriptions and legal sanctions for their disobedience, than the measures that were condemned as violative of Due Process in United States v. L. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516; A. B. Small Co. v. American Sugar Refining Co., 267 U.S. 233, 45 S.Ct. 295, 69 L.Ed. 589; Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322; Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840; Kunz v. People of State of New York, 340 U.S. 291, 71 S.Ct. 312, 328, 95 L.Ed. 267, 280. This principle is especially to be observed when what is so vague seeks to fetter the mind and put within unascertainable bounds the varieties of religious experience.
APPENDIX.*
58
Blasphemy: No entry.
59
Sacrilege: 'The robbing of a Church, the stealing of holy things, abusing of Sacraments or holy Mysteries.'
60
Sacrilegious: 'Abominable, every wicked.'
61
Blount, Glossographia (3d ed., London, 1670).
62
Blasphemy: No entry.
63
Sacrilege: 'the robbing a Church, or other holy consecrated place, the stealing holy things, or abusing Sacraments or holy Mysteries.'
64
Sacrilegious: 'that robs the Church; wicked, extremely bad.' Blount, A Law-Dictionary (London, 1670).
65
Blasphemy: No entry.
66
Sacrilege: No entry.
67
Phillips, The New World of Words (3d ed., London, 1671).
68
Blasphemy: 'an uttering of reproachfull words, tending either to the dishonour of God, or to the hurt and disgrace of any mans name and credit.'
69
Sacrilegious: 'committing Sacriledge, i.e. a robbing of Churches, or violating of holy things.'
70
Cowel, The Interpreter of Words and Terms (Manley ed., London, 1701).
71
Blasphemy: No entry.
72
Sacrilege: 'an Alienation to Lay-Men, and to profane or common purposes, of what was given to Religious Persons, and to Pious Uses, etc.'
73
Rastell, Law Terms (London, 1708).
74
Blasphemy: No entry.
75
Sacrilege: 'is when one steals any Vessels, Ornaments, or Goods of Holy Church, which is felony, 3 Cro. 153, 154.'
76
Kersey, A General English Dictionary (3d ed, London, 1721).
77
Blasphemy: 'an uttering of reporachful Words, that tend to the Dishonour of God, &c.'
78
Sacrilege: 'the stealing of Sacred Things, Church robbing.'
79
Cocker, English Dictionary (London, 1724).
80
Blasphemy: No entry.
81
Sacrilege: 'robbing the Church, or what is dedicated thereto.'
82
Bailey, Universal Etymological English Dictionary (London, 1730).
83
Blasphemy: 'an uttering of reproachful words tending to the dishonour of God, &c. vile, base language.' Sacrilege: 'the stealing of sacred Things, Church-Robbing; the Crime of profaning sacred Things, or alienating to Laymen, or common Uses, what was given to pious Uses and religious Persons.'
84
Coles, An English Dictionary (London, 1732).
85
Blasphemy: 'reproach.'
86
Sacrilege: 'the robbing of God, the Church, &c.'
87
Bullokar, The English Expositor (14th ed., London, 1731).
88
Blasphemy: No entry.
89
Sacrilege: 'The Robbing of a Church; the Stealing of holy things, or Abusing of Sacraments or holy Mysteries.'
90
Defoe, A Compleat English Dictionary (Westminster, 1735).
91
Blasphemy: 'vile or opprobrious Language, tending to the Dishonour of God.'
92
Sacrilege: 'the stealing of sacred Things, Church robbing.'
93
Bailey, An Universal Etymological English Dictionary (London, 1742).
94
Blasphemy: 'Cursing and Swearing, vile reproachful Language, tending to the Dishonour of God.'
95
Sacrilege: 'the stealing of Sacred Things, Church Robbing; an Alienation to Laymen, and to profane and common Purposes, of what was given to religious Persons, and to pious Uses.'
96
Martin, A New Universal English Dictionary (London, 1754).
97
Blasphemy: 'cursing, vile language tending to the dishonour of God or religion.'
98
Sacrilege: 'the stealing things out of a holy place, or the profaning things devoted to God.' Johnson, A Dictionary of the English Language (2d ed., London, 1755).
99
Blasphemy: 'strictly and properly, is an offering of some indignity, or injury, unto God himself, either by words or writing.'
100
Sacrilege: 'The crime of appropriating to himself what is devoted to religion; the crime of robbing heaven; the crime of violating or profaning things sacred.'
101
Rider, A New Universal English Dictionary (London, 1759).
102
Blasphemy: 'an offering some indignity to God, any person of the Trinity, any messengers from God; his holy writ, or the doctrines of revelation, either by speaking or writing any thing ill of them, or ascribing any thing ill to them inconsistent with their natures and the reverence we own them.'
103
Sacrilege: 'the crime of taking any thing dedicated to devine worship. The crime of profaning any thing sacred.'
104
Profane: 'to apply any thing sacred to common use. To be irreverent to sacred persons or things. To put to a wrong use.'
105
Gordon and Marchant, A New Complete English Dictionary (London, 1760).
106
Blasphemy: 'is an offering some indignity to God himself.'
107
Sacrilege: 'is the crime of appropriating to himself what is devoted to religion; the crime of robbing Heaven.'
108
Buchanan, A New English Dictionary (London, 1769).
109
Blasphemy: 'Language tending to the dishonour of God.'
110
Sacrilege: 'The stealing things out of a holy place.' Cunningham, A New and Complete Law Dictionary (London, 1771).
111
Blasphemy: A long definition reading in part: 'Is an injury offered to God, by denying that which is due and belonging to him, or attributing to him what is not agreeable to his nature.'
112
Sacrilege: 'Is church robbery, or a taking of things out of a holy place; as where a person steals any vessels, ornaments, or goods of the church. And it is said to be a robbery of God, at least of what is dedicated to his service. 2 Cro. 153, 154.
113
'* * * an alienation to lay-men, and to profane or common purposes, of what was given to religious persons, and to pious uses.'
114
Kenrick, A New Dictionary of the English Language (London, 1773).
115
Blasphemy: 'Treating the name and attributes of the Supreme Being with insult and indignity.'
116
Sacrilege: 'The crime of appropriating to himself what is devoted to religion; the crime of robbing heaven, says Johnson; the crime of violating or profaning things sacred.'
117
Profane: 'To violate; to pollute.—To put to wrong use.'
118
Ash, The New and Complete Dictionary of the English Language (London, 1775).
119
Blasphemy: 'The act of speaking or writing reproachfully of the Divine Being, the act of attributing to the creature that which belongs to the Creator.'
120
Sacrilege: 'The act of appropriating to one's self what is devoted to religion, the crime of violating sacred things.' Dyche, A New General English Dictionary (London 1777).
121
Blasphemy: 'the reproaching or dishonouring God, religion, and holy things.'
122
Sacrilege: 'the stealing or taking away those things that were appropriated to religious uses or designs.'
123
Sacrilegious: 'of a profane, thievish nature, sort, or disposition.'
124
Barclay, A Complete and Universal English Dictionary (London, 1782).
125
Blasphemy: 'an offering some indignity to God, any person of the Trinity, any messengers from God, his holy writ, or the doctrines of revelation.'
126
Sacrilege: 'the crime of taking any thing dedicated to divine worship, or profaning any thing sacred.'
127
Profane: 'to apply any thing sacred to common use. To be irreverent to sacred persons or things.'
128
Lemon, English Etymology (London, (1783).
129
Blaspheme: 'to speak evil of any one; to injure his fame, or reputation.'
130
Sacrilege: No entry.
131
Entick, New Spelling Dictionary (London, 1786).
132
Blasphemy: 'indignity offered to God.'
133
Blasphemer: 'one who abuses God.'
134
Sacrilege: 'the robbery of a church or chapel.'
135
Sacrilegious: 'violating a thing made sacred.'
136
Burn, A New Law Dictionary (Dublin, 1792).
137
Blasphemy: 'See Prophaneness.'
138
Profaneness: A long definition, not reproduced here.
139
Sacrilege: 'robbing of the Church, or stealing things out of a sacred place.'
140
Sheridan, A Complete Dictionary of the English Language (6th ed., Phila., 1796).
141
Blasphemy: 'Offering of some indignity to God.'
142
Sacrilege: 'The crime of robbing a church.' Scott, Dictionary of the English Language (Edinburgh, 1797).
143
Blasphemy: 'indignity offered to God.'
144
Sacrilege: 'the robbery of a church, &c.'
145
Richardson, A New Dictionary of the English Language (London, 1839).
146
Blasphemy: 'To attack, assail, insult (the name, the attributes, the ordinances, the revelations, the will or government of God).'
147
Sacrilege: 'to take away, to steal any thing sacred, or consecrated, or dedicated to holy or religious uses.'
148
Bell, A Dictionary and Digest of the Law of Scotland (Edinburgh, 1861).
149
Blasphemy: 'is the denying or vilifying of the Deity, by speech or writing.'
150
Sacrilege: 'is any violation of things dedicated to the offices of religion.'
151
Staunton, An Ecclesiastical Dictionary (N.Y., 1861).
152
Blasphemy: A long entry.
153
Sacrilege: 'The act of violating or subjecting sacred things to profanation; or the desecration of objects consecrated to God. Thus, the robbing of churches or of graves, the abuse of sacred vessels and altars by employing them for unhallowed purposes, the plundering and misappropriation of alms and donations, are acts of sacrilege, which in the ancient Church were punished with great severity.'
154
Bouvier, A Law Dictionary (11th ed., Phila., 1866).
155
Blasphemy: 'To attribute to God that which is contrary to his nature, and does not belong to him, and to deny what does; or it is a false reflection uttered with a malicious design of reviling God.' Sacrilege: 'The act of stealing from the temples or churches dedicated to the worship of God, articles consecrated to divine uses.'
156
Shipley, A Glossary of Ecclesiastical Terms (London 1872).
157
Blasphemy: 'Denying the existence or providence of God; contumelous reproaches of Jesus Christ; profane scoffing at the holy Scriptures, or exposing any part thereof to contempt or ridicule.'
158
Sacrilege: 'The profanation or robbery of persons or things which have been solemnly dedicated to the service of God. v. 24 & 25 Vict. c. 96, s. 50.'
159
Brown, A Law Dictionary (Sprague ed., Albany, 1875).
160
Blasphemy: 'To revile at or to deny the truth of Christianity as by law established, is a blasphemy, and as such is punishable by the common law. * * *'
161
Sacrilege: 'A desecration of any thing that is holy. The alienation of lands which were given to religious purposes to laymen, or to profane and common purposes, was also termed sacrilege.'
1
McKinney's N.Y.Consol.Laws, c. 16, 1947, Education Law, § 129.
2
Id., § 122.
3
The motion picture division had previously issued a license for exhibition of 'The Miracle' without English subtitles, but the film was never shown under that license.
4
McKinney's N.Y.Laws, 1947, Education Law, § 101; see also N.Y.Const. Art. V, § 4.
5
Stipulation between appellant and appellee, R. 86.
6
The action was brought under Article 78 of the New York Civil Practice Act, Gilbert-Bliss' N.Y.Civ.Prac., Vol. 6B, 1944, 1949 Supp., § 1283 et seq. See also McKinney's N.Y.Laws, 1947, Education Law, § 124.
7
236 U.S. at page 244, 35 S.Ct. at page 391, 59 L.Ed. 552.
8
Gitlow v. People of State of New York, 1925, 268 U.S. 652, 666, 45 S.Ct. 625, 69 L.Ed. 1138; Stromberg v. People of State of California, 1931, 283 U.S. 359, 368, 51 S.Ct. 532, 535, 75 L.Ed. 1117; Near v. State of Minnesota ex rel. Olson, 1931, 283 U.S. 697, 707, 51 S.Ct. 625, 627, 75 L.Ed. 1357; Grosjean v. American Press Co., 1936, 297 U.S. 233, 244, 56 S.Ct. 444, 446, 80 L.Ed. 660; De Jonge v. State of Oregon, 1937, 299 U.S. 353, 364, 57 S.Ct. 255, 259, 81 L.Ed. 278; Lovell v. City of Griffin, 1938, 303 U.S. 444, 450, 58 S.Ct. 666, 668, 82 L.Ed. 949; Schneider v. State of New Jersey (Town of Irvington), 1939, 308 U.S. 147, 160, 60 S.Ct. 146, 150, 84 L.Ed. 155.
9
See Lovell v. City of Griffin, 1938, 303 U.S. 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949.
10
See Inglis, Freedom of the Movis (1947), 20—24; Klapper, The Effects of Mass Media (1950), passim; Note, motion Pictures and the First Amendment, 60 Yale L.J. 696, 704—708 (1951), and sources cited therein.
11
See Grosjean v. American Press Co., 1936, 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660; Thomas v. Collins, 1945, 323 U.S. 516, 531, 65 S.Ct. 315, 323, 89 L.Ed. 430.
12
See United States v. Paramount Pictures, Inc., 1948, 334 U.S. 131, 166, 68 S.Ct. 915, 933, 92 L.Ed. 1260: 'We have no doubt that moving pictures, like newspapers and radio, are included in the press whose freedom is guaranteed by the First Amendment.' It is not without significance that talking pictures were first produced in 1926, eleven years after the Mutual decision. Hampton, A History of the Movies, 1931, 382—383.
13
E.g., Feiner v. People of State of New York, 1951, 340 U.S. 315, 71 S.Ct. 303, 328, 95 L.Ed. 267, 295; Kovacs v. Cooper, 1949, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513; Chaplinsky v. State of New Hampshire, 1942, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031; Cox v. State of New Hampshire, 1941, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049.
14
Near v. State of Minnesota ex rel. Olson, 1931, 283 U.S. 697, 713—719, 51 S.Ct. 625, 630—632, 75 L.Ed. 1357; see also Lovell v. City of Griffin, 1938, 303 U.S. 444, 451—452, 58 S.Ct. 666, 668—669, 82 L.Ed. 949; Grosjean v. American Press Co., 1936, 297 U.S. 233, 245—250, 56 S.Ct. 444, 447—449, 80 L.Ed. 660; Patterson v. State of Colorado ex rel. Attorney General, 1907, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879.
15
303 N.Y. 242, 258, 101 N.E.2d 665, 672. At another point the Court of Appeals gave 'sacrilegious' the following definition: 'the act of violating or profaning anything sacred'. Id., 303 N.Y. at page 255, 101 N.E.2d at page 670. The Court of Appeals also approved the Appellate Division's interpretation: 'As the court below said of the statute in question, 'All it purports to do is to bar a visual caricature of religious beliefs held sacred by one sect or another * * *." Id., 303 N.Y. at page 258, 101 N.E.2d at page 672. Judge Fuld, dissenting, concluded from all the statements in the majority opinion that 'the basic criterion appears to be whether the film treats a religious theme in such a manner as to offend the religious beliefs of any group of persons. If the film does have that effect, and it is 'offered as a form of entertainment,' it apparently falls within the statutory ban regardless of the sincerity and good faith of the producer of the film, no matter how temperate the treatment of the theme, and no matter how unlikely a public disturbance or breach of the peace. The drastic nature of such a ban is highlighted by the fact that the film in question makes no direct attack on, or criticism of, any religious dogma or principle, and it is not claimed to be obscene, scurrilous, intemperate or abusive.' Id., 303 N.Y. at pages 271—272, 101 N.E.2d at page 680.
16
Cf. Thornhill v. State of Alabama, 1940, 310 U.S. 88, 97, 60 S.Ct. 736, 741, 84 L.Ed. 1093; Stromberg v. People of State of California, 1931, 283 U.S. 359, 369—370, 51 S.Ct. 532, 535—536, 75 L.Ed. 1117.
17
Cf. Niemotko v. State of Maryland, 1951, 340 U.S. 368, 71 S.Ct. 325, 328, 95 L.Ed. 267, 280; Saia v. People of State of New York, 1948, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574; Largent v. State of Texas, 1943, 318 U.S. 418, 63 S.Ct. 667, 87 L.Ed. 873; Lovell v. City of Griffin, 1938, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949.
18
See Cantwell v. State of Connecticut, 1940, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213.
19
See the following statement by Mr. Justice Roberts, speaking for a unanimous Court in Cantwell v. State of Connecticut, 1940, 310 U.S. 296, 310, 60 S.Ct. 900, 906, 84 L.Ed. 1213:
'In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.
'The essential characteristic of these liberties is, that under their shield many types of life, character, opinion and belief can develop unmolested and unobstructed. Nowhere is this shield more necessary than in our own country for a people composed of many races and of many creeds.'
20
In the Near case, this Court stated that 'the primary requirements of decency may be enforced against obscene publications.' 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357. In Chaplinsky v. State of New Hampshire, 1942, 315 U.S. 568, 571—572, 62 S.Ct. 766, 769, 86 L.Ed. 1031, Mr. Justice Murphy stated for a unanimous Court: 'There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.' But see Kovacs v. Cooper, 1949, 336 U.S. 77, 82, 69 S.Ct. 448, 451, 93 L.Ed. 513: 'When ordinances undertake censorship of speech or religious practices before permitting their exercise, the Constitution forbids their enforcement.'
1
Crowther, 'The Strange Case of 'The Miracle," Atlantic Monthly, April, 1951, pp. 35, 36—37.
2
L'Osservatore Romano, Aug. 25, 1948, p. 2, col. 1, translated in part in The Commonweal, Mar. 23, 1951, p. 593, col. 2.
3
Ibid.
4
N.Y. Times, Feb. 11, 1951, § 2, p. 4, cols. 4—5.
5
Time, Feb. 19, 1951, pp. 60—61.
6
Il Popolo, Nov. 3, 1948, p. 2, col. 9, translated by Camille M. Cianfarra, N.Y. Times, Feb. 11, 1951, § 2, p. 4, col. 5.
7
L'Osservatore Romano, Nov. 12, 1948, p. 2, cols. 4—5.
8
Ibid.
9
'The Miracle' was passed by customs. To import 'any obscene, lewd, lascivious, or filthy * * * motion-picture film' is a criminal offense, 35 Stat. 1088, 1138, 18 U.S.C. (Supp. IV) § 1462, 18 U.S.C.A. § 1462; and importation of any obscene 'print' or 'picture' is barred. 46 Stat. 590, 688, 19 U.S.C. § 1305, 19 U.S.C.A. § 1305. Compare the provision, 'all photographic-films imported * * * shall be subject to such censorship as may be imposed by the Secretary of the Treasury.' 38 Stat. 114, 151 (1913), 42 Stat. 858, 920 (1922), repealed 46 Stat. 590, 762 (1930). See Inglis, Freedom of the Movies, 68.
10
Life, Jan. 15, 1951, p. 63; Sat. Rev. of Lit., Jan. 27, 1951, pp. 28—29.
11
N.Y. Times, Dec. 31, 1950, p. 23, col. 4.
12
Inglis, Freedom of the Movies, 120 et seq.
13
Id., at 74—82.
14
Howard Barnes, N.Y. Herald Tribune, Dec. 13, 1950, p. 30, cols. 1—3: 'it would be wise to time a visit to the Paris in order to skip ('The Miracle'). * * * Altogether it leaves a very bad taste in one's mouth.'
Bosley Crowther, N.Y. Times, Dec. 13, 1950, p. 50, cols. 2—3: 'each one of the three items * * * stacks up with the major achievements of the respective directors * * *. ('The Miracle') is by far the most overpowering and provocative of the lot.' N.Y. Times, Dec. 17, 1950, § 2, p. 3, cols. 7—8: 'a. picture of mounting intensity that wrings the last pang of emotion as it hits its dramatic
peak * * * vastly compassionate comprehension of the suffering and the triumph of birth.'
Wanda Hale, N.Y. Daily News, Dec. 13, 1950, p. 82, cols. 1—3: 'Rosselini's best piece of direction, since his greatest, 'Open City.' * * * artistic and beautifully done by both the star and the director.'
Archer Winsten, N.Y. Post, Dec. 13, 1950, p. 80, cols. 1—3: 'Magnani's performance is a major one and profoundly impressive. This reviewer's personal opinion marked down the film as disturbingly unpleasant and slow.'
Seymour Peck, N.Y. Daily Compass, Dec. 13, 1950, p. 13, cols. 3—5: "The Miracle' is really all Magnani. * * * one of the most exciting solo performances the screen has known.'
Alton Cook, N.Y. World-Telegram, Dec. 13, 1950, p. 50, cols. 1—2: '('The Miracle' is) charged with the same overwrought hysteria that ran through his 'Stromboli.' * * * the picture has an unpleasant preoccupation with filth and squalor * * * exceedingly trying experience.'
Time, Jan. 8, 1951, p. 72, cols. 2—3: '('The Miracle') is second-rate Rosselini despite a virtuoso performance by Anna Magnani.'
Newsweek, Dec. 18, 1950, pp. 93—94, col. 3: 'Strong medicine for most American audiences. However, it shows what an artist of Rosselini's character can do in the still scarcely explored medium of the film short story.'
Hollis Alpert, Sat. Rev. of Lit., Jan. 27, 1951, pp. 29—29: 'pictorially the picture is a gem, with its sensitive evocation of a small Italian town and the surrounding countryside near Salerno. * * * Anna Magnani again demonstrates her magnificent qualities of acting. The role is difficult. * * *
'But my quarrel would be with Mr. Rosselini, whose method of improvisation from scene to scene * * * can also result in extraneous detail that adds little, or even harms, the over-all effect.'
15
N.Y. Times, Dec. 28, 1950, p. 22, col. 1.
16
Id., Dec. 24, 1950, p. 1, cols. 2—3.
17
Joseph Burstyn, Inc. v. McCaffrey, 198 Misc. 884, 101 N.Y.S.2d 892.
18
N.Y. Times, Jan. 8, 1951, p. 1, col. 2. The Cardinal termed 'The Miracle' 'a vile and harmful picture,' 'a despicable affront to every Christian' ('We believe in miracles. This picture ridicules that belief'), and finally 'a vicious insult to Italian womanhood.' As a consequence, he declared: 'we, as the guardians of the moral law, must summon you and all people with a sense of decency to refrain from seeing it and supporting the venal purveyors of such pictures * * *.' Id., at p. 14, cols. 2—3.
For completeness' sake, later incidents should be noted. Picketers from the Catholic War Veterans, the Holy Name Society, and other Catholic organizations—about 1,000 persons during one Sunday—paraded before the Paris Theatre. Id., Dec. 29, 1950, p. 36, col. 3; Jan. 8, 1951, p. 1, col. 2; Jan. 9, 1951, p. 34, col. 7; Jan. 10, 1951, p. 22, col. 6; Jan. 15, 1951, p. 23, col. 3. A smaller number of counterpickets appeared on several days. Id., Jan. 10, 1951, p. 22, col. 6; Jan. 20, 1951, p. 10, cols. 4—5. See also id., Jan. 23, 1951, p. 21, col. 8; Jan. 25, 1951, p. 27, col. 7.
The Paris Theatre on two different evenings was emptied on threat of bombing. Id., Jan. 21, 1951, p. 1, cols. 2—3; Jan. 28, 1951, p. 1, cols. 2—3. Coincidently with the proceedings before the New York Board of Regents which started this case on the way to this Court, the Paris Theatre also was having difficulties with the New York City Fire Department. The curious may follow the development of those incidents, not relevant here, in the N.Y. Times, Jan. 21, 1951, p. 53, cols. 4—5; Jan. 27, 1951, p. 11, col. 3; Feb. 6, 1951, p. 29, col. 8; Feb. 10, 1951, p. 15, col. 8; Feb. 15, 1951, p. 33, col. 2.
19
Excerpts from letters and statements by a great many clergymen are reproduced in the Record before this Court, pages 95 140. The representative quotations in the text are from letters written by the Rev. H. C. DeWindt, Minister of the West ParkPresbyterian Church, New York City, R. 97, and the Rev. W. J. Beeners of Princeton, New Jersey, R. 98, respectively.
20
Catholic opinion generally, as expressed in the press, supported the view of the Legion of Decency and of Cardinal Spellman. See, for example, The (New York) Catholic News, Dec. 30, 1950, p. 10; Jan. 6, 1951, p. 10; Jan. 20, 1951, p. 10; Feb. 3, 1951, p. 10; Feb. 10, 1951, p. 12; and May 19, 1951, p. 12; Commonweal, Jan. 12, 1951, p. 351, col. 1; The (Brooklyn) Tablet, Jan. 20, 1951, p. 8, col. 4; id., Jan. 27, 1951, p. 10, col. 3; id., Feb. 3, 1951, p. 8, cols. 3—4; Martin Quigley, Jr., "The Miracle'—An Outrage'; The (San Francisco) Monitor, Jan. 12, 1951, p. 7, cols. 3—4 (reprinted from Motion Picture Herald, Jan. 6, 1951); The (Boston) Pilot, Jan. 6, 1951, p. 4. There doubtless were comments on 'The Miracle' in other diocesan papers which circulate in various parts of the country, but which are not on file in the Library of Congress or the library of the Catholic University of America.
21
Spaeth, 'Fogged Screen,' Magazine of Art, Feb., 1951, p. 44; N. Y. Herald Tribune, Jan. 30, 1951, p. 18, col. 4.
22
Clancy, 'The Catholic as Philistine,' The Commonweal, Mar. 16, 1951, pp. 567—569.
23
The Commonweal, Mar. 2, 1951, pp. 507—508. Much the same view was taken by FrankGetlein writing in The Catholic Messenger, Mar. 22, 1951, p. 4, cols. 1—8, in an article bearing the headline: 'Film Critic Gives Some Aspects of 'The Miracle' Story: Raises Questions Concerning Tactics of Organized Catholic Resistance Groups in New York,' See also, 'Miracles Do Happen,' The New Leader, Feb. 5, 1951, p. 30, col. 2.
24
N.Y. Times, Feb. 1, 1951, p. 24, col. 7.
25
Id., Jan. 13, 1951, p. 10, col. 6; translation by Chworowsky, 'The Cardinal: Critic and Censor,' The Churchman, Feb. 1, 1951, p. 7, col. 2.
26
That such offensive exploitation of modern means of publicity is not a fanciful hypothesis, see N.Y. Times, April 14, 1952, p. 1, col. 4.
27
In the Matter of 'The Puritan,' 60 N.Y.St.Dept. 163 (1939); In the Matter of 'Polygamy,' 60 N.Y.St.Dept. 217 (1939); In the Matter of 'Monja y Casada—Virgen y Martir' ('Nun and Married—Virgin and Martyr'), 52 N.Y.St.Dept. 488 (1935).
28
Since almost without exception 'sacrilegious' is defined in terms of 'sacrilege,' our discussion will be directed to the latter term. See Bailey, Universal Etymological English Dictionary (London, 1730), 'Sacrilegious'—'of, pertaining to, or guilty of Sacrilege'; Funk & Wagnalls' New Standard Dictionary (1937), 'Sacrilegious'—'Having committed or being ready to commit sacrilege. Of the nature of sacrilege; as, sacrilegious deeds.'
29
For general discussions of 'sacrilege,' see Encyclopaedia of Religion and Ethics (Hastings, ed., 1921), 'Sacrilege' and 'Tabu'; Rev. Thomas Slater, A Manual of Moral Theology (1908), 226 230; The Catholic Encyclopedia (1912), 'Sacrilege'; and Encyclopaedia Britannica, 'Sacrilege.'
30
Encyclopaedia Britannica (1951), 'Sacrilege.'
31
Ibid.
32
See Encyclopaedia of Religion and Ethics (Hastings, ed., 1921), 'Tabu.'
33
Encyclopaedia Britannica (1951), 'Sacrilege.'
34
St. Thomas Aquinas, Summa Theologica, part II—II, question 99. The modern Codex Juris Canonici does not give any definition of 'sacrilege,' but merely says it 'shall be punished by the Ordinary in proportion to the gravity of the fault, without prejudice to the penalties established by law * * *.' See Bouscaren and Ellis, Canon Law (1946), 857. 2 Woywod, A Practical Commentary on the Code of Canon Law (1929), par. 2178, 477—478, thus defines sacrilege: 'Sacrilege consists in the unworthy use or treatment of sacred things and sacred persons. Certain things are of their nature sacred (e.g., the Sacraments); others become so by blessing or consecration legitimately bestowed on things or places by authority of the Church. Persons are rendered sacred by ordination or consecration or by other forms of dedication to the divine service by authority of the Church (e.g., by first tonsure, by religious profession).'
35
After his method of raising objections and then refuting them, St. Thomas Aquinas defends including within the proscription of 'sacrilege,' anyone 'who disagree(s) about the sovereign's decision, and doubt(s) whether the person chosen by the sovereign be worthy of honor' and 'any man (who) shall allow the Jews to hold public offices.' Summa Theologica, part II—II, question 99, art. 1.
36
Rev. Thomas Slater, S.J., A Manual of Moral Theology (1908), c. VI, classifies and illustrates the modern theological view of 'sacrilege':
Sacrilege against sacred persons: to use physical violence against a member of the clergy; to violate 'the privilege of immunity of the clergy from civil jurisdiction, as far as this is still in force'; to violate a vow of chastity.
Sacrilege against sacred places: to violate the immunity of churches and other sacred places 'as far as this is still in force'; to commit a crime such as homicide, suicide, bloody attack there; to break by sexual act a vow of chastity there; to bury an infidel, heretic, or excommunicate in churches or cemeteries canonically established; or to put the sacred place to a profane use, as a secular courtroom, public market, banquet hall, stable, etc.
Sacrilege against sacred things: to treat with irreverence, contempt, or obscenity the sacraments (particularly the Eucharist), Holy Scriptures, relics, sacred images, etc., to steal sacred things, or profane things from sacred places; to commit simony; or to steal, confiscate, or damage wilfully ecclesiastical property. See also, The Catholic Encyclopedia, 'Sacrilege.'
37
Sir Henry Spelman, The History and Fate of Sacrilege (2d ed., 1853), 121—122. Two priests of the Anglican church prepared a long prefatory essay to bring Spelman's data up to the date of publication of the 1853 edition. Their essay shows their understanding also of 'sacrilege' in the limited sense. Id., at 1 120.
38
2 Russell, Crime (10th ed., 1950), 975—976; Stephen, A Digest of the Criminal Law (9th ed., 1950), 348—349. See 23 Hen. VIII, c. 1, § III; 1 Edw. VI, c. 12, § X; 1 Mary, c. 3, §§ IV—VI.
39
7 & 8, Geo. IV, c. 29, § X, which the marginal note summarized as 'Sacrilege, when capital,' read: 'if any Person shall break and enter any Church or Chapel, and steal therein any Chattel * * * (he) shall suffer Death as a Felon.' This statute was interpreted to apply only to buildings of the established church. Rex v. Nixon, 7 Car. & P. 442 (1836).
40
7 & 8 Geo. IV, c. 29, § X, was repealed by 24 & 25 Vict., c.95. The Larceny Act and the Malicious Injuries to Property Act, both of 1861, treated established church property substantially the same as all other property. 24 & 25 Vict., c. 96, § 50; c. 97, §§ 1, 11, 39, superseded by Larceny Act, 1916, 6 & 7 Geo. V, c. 50, § 24.
41
Blackstone, bk. IV, c. 4, 41—64.
42
Compare the definitions of 'sacrilege' and 'blasphemy' in the dictionaries, starting with Cockeram's 1651 edition, which are collected in the Appendix.
43
Bailey, An Universal Etymological English Dictionary (London, 1742), 'Sacrilege'.
44
Barclay, A Complete and Universal English Dictionary (London, 1782), 'Sacrilege'.
45
Id., 'Blasphemy.'
46
Thomas Blount, Glossographia (3d ed., London, 1670).
47
Webster's Compendious Dictionary of the English Language (1806): 'Sacrilege'—'the robbery of a church or chapel.' 'Sacrilegious'—'violating a thing made sacred.'
Webster's American Dictionary (1828): 'Sacrilege'—'the crime of violating or profaning sacred things; or the alienating to laymen or to common purposes what has been appropriated or consecrated to religious persons or uses.' 'Sacrilegious' 'Violating sacred things; polluted with the crime of sacrilege.'
Webster's International Dictionary (1890) G. & C. Merriam & Co., 'Sacrilege'—'The sin or crime of violating or profaning sacred things; the alienating to laymen, or to common purposes, what has been appropriated or consecrated to religious persons or uses.' 'Sacrilegious'—'violating sacred things; polluted with sacrilege; involving sacrilege; profane; impious.'
Webster's New International Dictionary (1st ed., 1909) G. & C. Merriam Co., 'Sacrilege'—'The sin or crime of violating or profaning sacred things; specif., the alienating to alymen, or to common purposes, what has been appropriated or consecrated to religious persons or uses.' 'Sacrilegious'—' Violating sacred things; polluted with, or involving, sacrilege; impious.' Repeated in the 1913, 1922, 1924, 1928, 1933 printings, among others.
Webster's New International Dictionary (2d ed., 1934) G. & C. Merriam Co., 'Sacrilege'—'the crime of stealing, misusing, violating, or desecrating that which is sacred, or holy, or dedicated to sacred uses. Specif.: a R.C. Ch. The sin of violating the conditions for a worthy reception of a sacrament. b Robbery from a church; also, that which is stolen. c Alienation to laymen, or to common purposes, of what has been appropriated or consecrated to religious persons or uses.' 'Sacrilegious' 'Committing sacrilege; characterized by or involving sacrilege; polluted with sacrilege; as, sacrilegious robbers, depredations, or acts.' Repeated in the 1939, 1942, 1944, 1949 printings, among others.
48
Funk & Wagnalls' Standard Dictionary of the English Language, which was first copyrighted in 1890, defined sacrilege as follows in the 1895 printing: '1. The act of violating or profaning anything sacred. 2. Eng. Law (1) The larceny of consecrated things from a church; the breaking into a church with intent to commit a felony, or breaking out after a felony. (2) Formerly, the selling to a layman of property given to pious uses.' This definition remained unchanged through many printings of that dictionary. The current printing of Funk & Wagnalls' New Standard Dictionary of the English Language, first copyrighted in 1913, carries exactly the same definition of 'sacrilege' except that the first definition has been expanded to read: 'The act of violating or profaning anything sacred, including sacramental vows.'
Funk & Wagnalls' Standard Dictionary (1895) defined 'to profane' as '1. To treat with irreverence or abuse; make common or unholy; desecrate; pollute. 2. Hence, to put to a wrong or degrading use; debase.' The New Standard Dictionary adds a third meaning: '3. To vulgarize; give over to the crowd.'
49
Encyclopaedia Britannica, 2d ed., 1782: 'Sacrilege'—'the crime of profaning sacred things, or those devoted to the service of God.'
3d ed., 1797: 'Sacrilege'—'the crime of profaning sacred things, or things devoted to God; or of alienating to laymen, for common purposes, what was given to religious persons and pious uses.'
8th ed., 1859: 'Sacrilege'—same as 3d ed., 1797.
9th ed., 1886: 'Sacrilege'—A relatively short article the author of which quite apparently had a restricted definition for 'sacrilege': 'robbery of churches,' 'breaking or defacing of an altar, crucifix, or cross,' etc.
50
Encyclopaedia Britannica (11th ed., 1911), 'Sacrilege.'
51
Schroeder, Constitutional Free Speech (1919), 178—373, makes a lengthy review of 'Prosecutions for Crimes Against Religion.' The examples in the taxt are from Schroeder. See also Encyclopaedia of the Social Sciences, 'Blasphemy'; Encyclopaedia of Religion and Ethics, 'Blasphemy'; Nokes, A History of the Crime of Blasphemy (1928).
52
1 Yorke, The Life of Lord Chancellor Hardwicke (1913), 80, writes thus of the prosecution of Thomas Woolston for blasphemy: 'The offence, in the first place, consisted in the publication in 1725 of a tract entitled A Moderator between an Infidel and an Apostate, in which the author questioned the historical accuracy of the Resurrection and the Virgin Birth. Such speculations, however much they might offend the religious feeling of the nation, would not now arouse apprehensions in the civil government, or incur legal penalties; but at the time of which we are writing, when the authority of government was far less stable and secure and rested on far narrower foundations than at present, such audacious opinions were considered, not without some reason, as a menace, not only to religion but to the state.'
53
See, e.g., Rex v. Boulter, 72 J.P. 188 (1908); Bowman v. Secular Society, Ltd., (1917) A.C. 406.
54
Reg v. Ramsay, 15 Cox's C.C. 231, 238 (1883) (Lord Coleridge's charge to the jury); Bowman v. Secular Society, Ltd., (1917) A.C. 406.
55
The latest available statistics of the Bureau of the Census give returns from 256 denominations; 57 other denominations, which did not report, are listed. Bureau of the Census, Religious Bodies: 1936, Vol. I, iii, 7.
56
It is not mere fantasy to suggest that the effect of a ban of the 'sacrilegious' may be to ban all motion pictures dealing with any subject that might be deemed religious by any sect. The industry's self-censorship has already had a distorting influence on the portrayal of historical figures. 'Pressure forced deletion of the clerical background of Cardinal Richelieu from The Three Musketeers. The (Motion Picture Production) Code provision appealed to was the section providing that ministers should not be portrayed as villains.' Note, 'Motion Pictures and the First Amendment,' 60 Yale L.J. 696, 716, n. 42.
The press recently reported that plans are being made to film a 'Life of Martin Luther.' N.Y. Times, April 27, 1952, § 2, p. 5, col. 7. Could Luther by sympathetically portrayed and not appear 'sacrilegious' to some; or unsympathetically, and not to others?
*
See Mathews, A Survey of English Dictionaries (1933).
Cockeram, English Dictionarie (10th ed., London, 1651).
| 23
|
343 U.S. 470
72 S.Ct. 800
96 L.Ed. 1081
FEDERAL TRADE COMMISSIONv.RUBEROID CO. RUBEROID CO. v. FEDERAL TRADE COMMISSION.
Nos. 448, 504.
Argued March 31, April 1, 1952.
Decided May 26, 1952.
[Syllabus from pages 470-471 intentionally omitted]
Mr. James Cassedy, Washington, D.C., for Federal Trade commission.
Mr. Cyrus Austin, New York City, for Ruberiod Co.
Mr. Justice CLARK delivered the opinion of the Court.
1
In this case we granted cross-petitions for certiorari to review the decree of the Court of Appeals affirming, but refusing to enforce, a cease and desist order issued by the Federal Trade Commission to the Ruberoid Co.
2
Ruberoid is one of the nation's largest manufacturers of asphalt and asbestos roofing materials and allied products. The Commission found that Ruberoid, in a number of specific instances, had discriminated among customers in the prices charged them for roofing materials. Further finding that the effect of those discriminations 'may be substantially to lessen competition in the line of commerce in which (those customers) are engaged, and to injure, destroy, or prevent competition between (those customers),'1 the Commission held that the discriminations were violations of § 2(a) of the Clayton Act, as amended by the Robinson-Patman Act.2 46 F.T.C. 379. Ruberoid was ordered to:
3
'(C)ease and desist from discriminating in price:
4
'By selling such products of like grade and quality to any purchaser at prices lower than those granted other purchasers who in fact compete with the favored purchaser in the resale or distribution of such products.'3
5
Upon Ruberoid's petition for review, the Court of Appeals affirmed and granted enforcement of the order. 2 Cir., 189 F.2d 893. However, on rehearing, the Court of Appeals amended its mandate to strike that part which directed enforcement. 2 Cir., 191 F.2d 294. We granted certiorari to review questions, important in the administration of the Clayton Act, as to the scope and enforcement of Federal Trade Commission orders. 342 U.S. 917, 72 S.Ct. 368.
6
We first consider the contentions of Ruberoid, which are mainly attacks upon the breadth of the order. Orders of the Federal Trade Commission are not intended to impose criminal punishment or exact compensatory damages for past acts, but to prevent illegal practices in the future. In carrying out this function the Commission is not limited to prohibiting the illegal practice in the precise form in which it is found to have existed in the past. If the Commission is to attain the objectives Congress envisioned, it cannot be required to confine its road block to the narrow lane the transgressor has traveled; it must be allowed effectively to close all roads to the prohibited goal, so that its order may not be by-passed with impunity.4 Moreover, '(t) he Commission has wide discretion in its choice of a remedy deemed adequate to cope with the unlawful practices' disclosed. Jacob Siegel Co. v. Federal Trade Comm., 1946, 327 U.S. 608, 611, 66 S.Ct. 758, 759, 90 L.Ed. 888. Congress placed the primary responsibility for fashioning such orders upon the Commission, and Congress expected the Commission to exercise a special competence in formulating remedies to deal with problems in the general sphere of competitive practices.5 Therefore we have said that 'the courts will not interfere except where the remedy selected has no reasonable relation to the unlawful practices found to exist.' Id., 327 U.S. at page 613, 66 S.Ct. at page 760.
7
In the light of these principles, we examine the specific objections of Ruberoid to the order in this case. First, it is argued that the order went too far in prohibiting all price differentials between competing purchasers, although only differentials of 5% Or more were found. But the Commission found that very small differences in price were material factors in competition among Ruberoid's customers, and Ruberoid offered no evidence to the contrary. In this state of the record the Commission was not required to limit its prohibition to the specific differential shown to have been adopted in past violations of the statute.6 In the absence of any indication that a lesser discrimination might not affect competition there was no need to afford an escape clause through which the seller might frustrate the whole purpose of the proceedings and the order by limiting future discrimination to something less than 5%.7
8
The roofing material customers of Ruberoid may be classified as wholesalers, retailers, and roofing contractors or applicators.8 The discriminations found by the Commission were in sales to retailers and applicators. The Commission held that there was insufficient evidence in the record to establish discrimination among wholesalers, as such. Ruberoid contends that the order should have been similarly limited to sales to retailers and applicators. But there was ample evidence that Ruberoid's classification of its customers did not follow real functional differences. Thus some purchasers which Ruberoid designated as 'wholesalers' and to which Ruberoid allowed extra discounts in fact competed with other purchasers as applicators. And the Commission found that some purchasers operated as both wholesalers and applicators. So finding, the Commissioner disregarded these ambiguous labels, which might be used to cloak discriminatory discounts to favored customers, and stated its order in terms of 'purchasers who in fact compete.' Thus stated, we think the order is understandable, reasonably related to the facts shown by the evidence, and within the broad discretion which the Commission possesses in determining remedies.
9
Finally, Ruberoid complains that the order enjoins lawful acts by failing to except from its prohibitions differentials which merely make allowance for differences in cost of manufacture, sale or delivery, or which are mede in good faith to meet an equally low price of a competitor. Differences in price satisfying either of these tests are permitted by the terms of the Act.9 It is argued that the Commission has radically broadened its prohibitory powers through failure to include these provisos in the order. We do not think so because we think the provisos are necessarily implicit in every order issued under the authority of the Act, just as if the order set them out in extenso. Although previous Commission orders have included these provisos, they gained no force by that inclusion. Their absence cannot preclude the seller from differentiating in price in a new competitive situation involving different circumstances where it can justify the discrimination in accordance with the statutory provisos. Nor is the seller required to seek modification of the order each time, for example, that a competitor's price reduction requires it either to lower its price in good faith to meet the lower competing price or to lose a fleeting sales opportunity. On the other hand, the implied inclusion of the provisos in the order does not shift from the seller the burden of proof of justification.10 Neither does recognition of the implicit availability of these defenses allow the seller to relitigate issues already settled by prior proceedings before the Commission which resulted in an order that was affirmed in the courts. If questions of justification, claimed upon the basis of facts relating to costs or meeting competition, have once been finally decided against the seller, it cannot again interpose the same defense upon substantially similar facts when the Commission seeks to show that its order has been violated.11 The same result follows where the evidence supporting the defense, although not produced in the previous proceedings, was then available to the seller. In short the seller, in contesting enforcement or contempt proceedings, may plead only those facts constituting statutory justification which it has not had a previous opportunity to present.
10
The sole question presented by the Commission's petition concerns the lower court's holding, with one dissent, that the Commission could not 'obtain a decree directing enforcement of an order issued under the Clayton Act in the absence of showing that a violation of the order has occurred or is imminent'.12 The pertinent parts of the Act provide:
11
'If such person (subject to the order) fails or neglects to obey such order of the commission * * * while the same is in effect, the commission * * * may apply to the circuit court of appeals of the United States * * * for the enforcement of its order * * *. (T)he court * * * shall have power to make and enter * * * a decree affirming, modifying, or setting aside the order of the commission * * *.
12
'Any party required by such order of the commission * * * to cease and desist from a violation charged may obtain a review of such order in said circuit court of appeals by filing in the court a written petition praying that the order of the commission * * * be set aside * * *. (T)he court shall have the same jurisdiction to affirm, set aside, or modify the order of the commission * * * as in the case of an application by the commission * * * for the enforcement of its order * * *.
13
'The jurisdiction of the circuit court of appeals of the United States to enforce, set aside, or modify orders of the commission * * * shall be exclusive.'13
14
The Commission argues, first, that the provision authorizing it to apply for enforcement 'if such person fails or neglects to obey such order' is merely 'a Congressional directive to the Commission as to the circumstances under which it may go into court to seek enforcement,' which does not amount to a prerequisite to the court's granting of enforcement.14 We cannot subscribe to this argument, which disregards the unequivocal language of the statute and its consistent interpretation over the thirty-eight-year period of its existence.15 Congress, in 1938, amended similar language in the Federal Trade Commission Act, so that the reviewing court is now plainly required, upon affirmance, to enforce an order based upon violation of that Act.16 The Commission has repeatedly sought similar amendment of the Clayton Act provisions involved in this case.17 We will not now achieve the same result by reinterpretation in the face of Congress' failure to pass the bills thus brought before it.18 Effective enforcement of the Clayton Act by the Commission may be handicapped by the present provisions, but that is a question of policy for Congress.
15
Alternatively, the Commission argues that, even though disobedience of the order is a condition to enforcement upon the application of the Commission, there is no such condition where the order comes before the court upon petition for review by the affected party. This argument begins with the difference in language between the statutory paragraphs providing for review at the instance of the respective parties, but consideration of the section as a whole convinces us that the most that can be said for the argument is that the section is ambiguous. We think the statutory prerequisite to enforcement applies when the Commission seeks enforcement by cross-petition after review has been set in motion by the party subject to the order as well as when the Commission makes the original application.19 There is no reason why one who has complied with the order, but who seeks to have it reviewed and modified or set aside, should be placed in a worse position than one who does not exercise that right. We doubt that Congress intended its requirement for enforcement to depend entirely upon which party goes to court first.
16
Affirmed.
17
Mr. Justice BLACK concurs in the judgment and opinion of the Court, except that he thinks the Commission's order should expressly except from its prohibitions differentials which merely make allowances for differences in the cost of manufacture, sale, or delivery, or which are made in good faith to meet an equally low price of a competitor.
18
Mr. Justice FRANKFURTER, not having heard the argument, owing to illness, took no part in the disposition of this case.
19
Mr. Justice DOUGLAS dissents from the denial of enforcement of the order.
20
Mr. Justice JACKSON, dissenting in No. 504.
21
The Federal Trade Commission, in July of 1943, instituted before itself a proceeding against petitioner on a charge of discriminating in price between customers in violation of subsection (a) of § 2 of the Clayton Act as amended by the Robinson-Patman Act, approved June 19, 1936, 15 U.S.C. § 13(a), 15 U.S.C.A. § 13(a).
22
Several violations were proved and admitted to have occurred in 1941. No serious opposition was offered to an order to cease and desist from such discriminations, but petitioner did object to being ordered to cease types of violations it never had begun and asked that any order include a clause to the effect that it did not forbid the price differentials between customers which are expressly allowed by statute.
23
However, the Commission refused to include such a provision as 'unnecessary to assure respondent (petition here) its full legal rights.' It also rejected the specific and limited order recommended by its Examiner and substituted a sweeping general order to 'cease and desist from discriminating in price: By selling such products of like grade and quality to any purchaser at prices lower than those granted other purchasers who in fact compete with the favored purchaser in the resale or distribution of such products.' It wrote no opinion and gave only the most cryptic reasons in its findings.1
24
On proceedings for review, petitioner attacked this order for its indeterminateness and its prohibition of differentials allowed by statute. The Court of Appeals, however, affirmed, saying:
25
'We sympathize with the petitioner's position and can realize the difficulties of conducting business under such general prohibitions. Nevertheless we are convinced that the cause of the trouble is the Act itself, which is vague and general in its wording and which cannot be translated with assurance into any detailed set of guiding yardsticks.'2
26
This appraisal of the result of almost ten years of litigation exposes a grave deficiency either in the Act itself or in the administrative process by which it has been applied. Admitting that the statute is 'vague and general in its wording,' it does not follow that a cease and desist order implementing it should be. I think such an outcome of administrative proceedings is not acceptable. We would rectify and advance the administrative process, which has become an indispensable adjunct to modern government, by returning this case to the Commission to perform its most useful function in administering an admittedly complicated Act.
27
If the Court of Appeals were correct, it would mean that the intercession of the administrative process between the Congress and the Court does nothing either to define petitioner's duties and liabilities or to impose sanctions. Congress might as well have declared, in these comprehensive terms, a duty not to discriminate and provided for prosecution of violations in the courts. That, of course, would impose on the courts the task of determining the meaning and application of the law to the facts. But that is just the task that this order imposes upon the courts in event of a contempt proceeding. The courts have derived no more detailed 'guiding yardsticks' from the Commission than from Congress. On the contrary, the ultimate enforcement is further confused by the administrative proceeding, because it winds up with an order which literally forbids what the Act expressly allows and thus adds to the difficulty of eventual sanctions should they become necessary.
28
If the unsound result here were an isolated example of malaise in the administrative scheme, its tolerance by the Court would be less troubling, though no less wrong. But I think its decision may encourage a deterioration of the administrative process of which this case is symptomatic and which invites invasion of the independent agency administrative field by executive agencies. Other symptoms, betokening the same basic confusion, are the numerous occasions when administrative findings are inadequate for purposes of review and recent instances in which part of the government appears before us fighting another part—usually a wholly executive-controlled agency attacking one of the independent administrative agencies—the Departments of Agriculture, Secretary of Agriculture v. United States (jurisdiction noted 72 S.Ct. 1042), and Justice, United States v. Interstate Commerce Commission, 337 U.S. 426, 69 S.Ct. 1410, 93 L.Ed. 1451, against the Interstate Commerce Commission, the Department of Justice against the Maritime Commission, Far East Conference v. United States, 342 U.S. 570, 72 S.Ct. 492, the Secretary of the Interior against the Federal Power Commission, United States ex rel. Chapman v. Federal Power Commission (certiorari granted 343 U.S. 941, 72 S.Ct. 1034). Abstract propositions may not solve concrete cases, but, when basic confusion is responsible for a particular result, resort to the fundamental principles which determine the position of the administrative process in our system may help to illuminate the shortcomings of that result.
I.
29
The Act, like many regulatory measures, sketches a general outline which contemplates its completion and clarification by the administrative process before court review or enforcement.
30
This section of the Act admittedly is complicated and vague in itself and even more so in its context. Indeed, the Court of Appeals seems to have thought it almost beyond understanding. By the Act, nothing is commanded to be done or omitted unconditionally, and no conduct or omission is per se punishable. The commercial discriminations which it forbids are those only which meet three statutory conditions and survive the test of five statutory provisos. To determine which of its overlapping and conflicting policies shall govern a particular case involves inquiry into grades and qualities of goods, discriminations and their economic effects on interstate commerce, competition between customers, the economic effect of price differentials to lessen competition or tend to create a monopoly, allowance for differences in cost of manufacturing sale or delivery and good faith in meeting of the price, services or facilities of competitors.
31
This Act exemplifies the complexity of the modern lawmaking task and a common technique for regulatory legislation. It is typical of instances where the Congress cannot itself make every choice between possible lines of policy. It must legislate in generalities and delegate the final detailed choices to some authority with considerable latitude to conform its orders to administrative as well as legislative policies.
32
The large importance that policy and expertise were expected to play in reducing this Act to 'guiding yardsticks' is evidenced by the fact that authority to enforce the section is not confided to a single body for all industries but is dispersed among four administrative agencies which deal with special types of commerce besides the Federal Trade Commission.3
33
A seller may violate this section of the Act without guilty knowledge or intent and may unwittingly subject himself to a cease and desist order. But neither violation of the Act nor of the order will call for criminal sanctions; neither is even enforceable on behalf of the United States by injunction until after an administrative proceeding has resulted in a cease and desist order and it has been reviewed and affirmed, if review be sought, by the Court of Appeals. Only an enforcement order issued from the court carries public sanctions,4 and its violation is punishable as a contempt.
34
Thus Congress, in this Act, has refrained from imposition of an unconditional duty directly enforceable by the government through civil or criminal proceedings in court, as it has in the Sherman Anti-Trust Act and the Wilson Tariff Act of 1894.5 It has carefully kept such cases as this out of the courts and has shielded a violator from any penalty until the administrative tribunal hands down a definitive order. The difference is accented by another section of the Robinson-Patman Act which does make participation by any person in specified transactions which discriminate 'to his knowledge' a criminal violation judicially punishable.6
35
It may help clarify the proper administrative function in such cases to think of the legislation as unfinished law which the administrative body must complete before it is ready for application.7 In a very real sense the legislation does not bring to a close the making of the law. The Congress is not able or willing to finish the task of prescribing a positive and precise legal right or duty by eliminating all further choice between policies, expediences or conflicting guides, and so leaves the rounding out of its command to another, smaller and specialized agency.
36
It is characteristic of such legislation that it does not undertake to declare an end result in particular cases but rather undertakes to control the processes in the administrator's mind by which he shall reach results. Because Congress cannot predetermine the weight and effect of the presence or absence of all of the competing considerations or conditions which should influence decisions regulating modern business, it attempts no more than to indicate generally the outside limits of the ultimate result and to set out matters about which the administrator must think when he is determining what within those confines the compulsion in a particular case is to be.
37
Such legislation does not confer on any of the parties in interest the right to a particular result, nor even to what we might think ought to be the correct one, but it gives them the right to a process for determining these rights and duties. Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 251, 71 S.Ct. 692, 695, 95 L.Ed. 912; Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 194, 195, 61 S.Ct. 845, 852, 853, 85 L.Ed. 1271.
38
Such legislation represents inchoate law in the sense that it does not lay down rules which call for immediate compliance on pain of punishment by judicial process. The intervention of another authority must mature and perfect an effective rule of conduct before one is subject to coercion. The statute, in order to rule any individual case, requires an additional exercise of discretion and that last touch of selection which neither the primary legislator nor the reviewing court can supply. The only reason for the intervention of an administrative body is to exercise a grant of unexpended legislative power to weigh what the legislature wants weighed, to reduce conflicting abstract policies to a concrete net remainder of duty or right. Then, and then only, do we have a completed expression of the legislative will, in an administrative order which we may call a sort of secondary legislation, ready to be enforced by the courts.
II.
39
The constitutional independence of the administrative tribunal presupposes that it will perform the function of completing unfinished law.
40
The rise of administrative bodies probably has been the most significant legal trend of the last century and perhaps more values today are affected by their decisions than by those of all the courts, review of administrative decisions apart. They also have begun to have important consequences on personal rights. Cf. United States v. Spector, 343 U.S. 169, 72 S.Ct. 591. They have become a veritable fourth branch of the Government, which has deranged our three-branch legal theories much as the concept of a fourth dimension unsettles our three-dimensional thinking.
41
Courts have differed in assigning a place to these seemingly necessary bodies in our constitutional system. Administrative agencies have been called quasi-legislative, quasi-executive or quasi-judicial, as the occasion required, in order to validate their functions within the separation-of-powers scheme of the Constitution. The mere retreat to the qualifying 'quasi' is implicit with confession that all recognized classifications have broken down, and 'quasi' is a smooth cover which we draw over our confusion as we might use a counterpane to conceal a disordered bed.
42
The perfect example is the Federal Trade Commission itself. By the doctrine that it exercises legislative discretions as to policy in completing and perfecting the legislative process, it has escaped executive domination on the one hand and been exempted in large measure from judicial review on the other. If all it has to do is to order the literal statute faithfully executed, it would exercise a function confided exclusively to the President and would be subject to his control. Cf. Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160; U.S. Const., Art. II, §§ 1, 3. This Court saved it from executive domination only by recourse to the doctrine that 'In administering the provisions of the statute in respect of 'unfair methods of competition,' that is to say, in filling in and administering the details embodied by that general standard, the commission acts in part quasi legislatively and in part quasi judicially.' Humphrey's Executor v. United States, 295 U.S. 602, 628, 55 S.Ct. 869, 874, 79 L.Ed. 1611.
43
When Congress enacts a statute that is complete in policy aspects and ready to be executed as law, Congress has recognized that enforcement is only an executive function and has yielded that duty to wholly executive agencies, even though determination of fact questions was necessary.8 Examples of the creation of such rights and obligations are patent, revenue and customs laws. Only where the law is not yet clear of policy elements and therefore not ready for mere executive enforcement is it withdrawn from the executive department and confided to independent tribunals. If the tribunal to which such discretion is delegated does nothing but promulgate as its own decision the generalities of its statutory charter, the rationale for placing it beyond executive control is gone.
III.
44
The quasi-legislative function of filling in blank spaces in regulatory legislation and reconciling conflicting policy standards must neither be passed on to the courts nor assumed by them.
45
That the work of a Commission in translating an abstract statute into a concrete cease and desist order in large measure escapes judicial review because of its legislative character is an axiom of administrative law, as the Court's decision herein shows. In delegating the function of filling out the legislative will in particular cases, Congress must not leave the statute too empty of meaning. Courts look to its standards to see whether the Commission's result is within the prescribed terms of reference, whether the secondary legislation properly derives from the primary legislation.
46
Then, too, we look to administrative findings, not to reconsider their justification, but to learn whether the parties have had the process of determination to which the statute has entitled them and whether the Commission has thought about—or at least has written about—all factors which Congress directed it to consider in translating unfinished legislation into a 'detailed set of guiding yardsticks' that becomes law of the case for parties and courts.9
47
However, a determination by an independent agency, with 'quasi-legislative' discretion in its armory, has a much larger immunity from judicial review than does a determination by a purely executive agency. The court, in review of a case under the tax law or the patent law, where the legislative function has been exhausted and policy considerations are settled in the Acts themselves, follows the same mental operation as the executive officer. On the facts, there results an obligation to pay tax, or there is a right to a patent. The court can deduce these legal rights or obligations from the statute in the same manner as the executive officer. Hence, review of such executive decisions proceeds with no more deference to the administrative judgment than to a decision of a lower court.
48
Very different, however, is the review of the 'quasi-legislative' decision. There the right or liability of the parties is not determined by mere application of statute to the facts. The right or obligation results not merely from the abstract expression of the will of Congress in the statute, but from the Commission's completion and concretization of that will in its order. Cf. Montana-Dakota Utilities Co. v. Northwestern Public Service Co., supra, 341 U.S. 251, 71 S.Ct. 695; Phelps Dodge Corp. v. National Labor Relations Board, supra.
49
On review, the Court does not decide whether the correct determination has been reached. So far as the Court is concerned, a wide range of results may be equally correct. In review of such a decision, the Court does not at all follow the same mental processes as the Commission did in making it, for the judicial function excludes (in theory, at least) the policy-making or legislative element, which rightfully influences the Commission's judgment but over which judicial power does not extend. Since it is difficult for a court to determine from the record where quasi-legislative policy making has stopped and quasi-judicial application of policy has begun, the entire process escapes very penetrating scrutiny. Cf. Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591, 64 S.Ct. 281, 88 L.Ed. 333.
50
Courts are no better equipped to handle policy questions and no more empowered to exercise legislative discretion on contempt proceedings than on review proceedings. It is plain that, if the scheme of regulating complicated enterprises through unfinished legislation is to be just and effective, we must insist that the legislative function be performed and exhausted by the administrative body before the case is passed on to the courts.
IV.
51
This proceeding should be remanded for a more definitive and circumscribed order.
52
Returning to this case, I cannot find that ten years of litigation have served any useful purpose whatever. No doubt it is administratively convenient to blanket an industry under a comprehensive prohibition in bulk—an undiscriminating prohibition of discrimination. But this not only fails to give the precision and concreteness of legal duties to the abstract policies of the Act, it really promulgates an inaccurate partial paraphrase of its indeterminate generalities. Instead of completing the legislation by an order which will clarify the petitioner's duty, it confounds confusion by literally ordering it to cease what the statute permits it to do.
53
This Court and the court below defer solution of the problems inherent in such an order, on the theory that if petitioner offends again there may be an enforcement order, and if it then offends again there may be a contempt proceeding and that will be time enough for the court to decide what the order against the background of the Act really means. While I think this less than justice, I am not greatly concerned about what the Court's decision does to this individual petitioner, for whom I foresee no danger more serious than endless litigation. But I am concerned about what it does to administrative law.
54
To leave definition of the duties created by an order to a contempt proceeding is for the courts to end where they should begin. Injunctions are issued to be obeyed, even when justification to issue them may be debatable. United States v. United Mine Workers of America, 330 U.S. 258, 289 et seq., 307, 67 S.Ct. 677, 693, 702, 91 L.Ed. 884. But in this case issues that seem far from frivolous as to what is forbidden are reserved for determination when punishment for disobedience is sought. The Court holds that some modifications are 'implicit' in this order. Why should they not be made explicit? Why approve an order whose literal terms we know go beyond the authorization, on the theory that its excesses may be retracted if ever it needs enforcement? Why invite judicial indulgence toward violation by failure to be specific, positive and concrete?
55
It does not impress me as lawyerly practice to leave to a contempt proceeding the clarification of the reciprocal effects of this Act and order, and determination of the effect of statutory provisos which are then to be read into the order. The courts cannot and should not assume that function. It is, by our own doctrine, a legislative or 'quasi-legislative' function, and the courts cannot take over the discretionary functions of the Commission which should enter into its determinations. Plainly this order is not in shape to enforce and does not become so by the Court's affirmance.
56
This proceeding should be remanded to the Commission with directions to make its order specific and concrete, to specify the types of discount which are forbidden and reserve to petitioner the rights which the statute allows it, unless they are deemed lost, forfeited or impaired by the violations, in which case any limitation should be set forth. The Commission should, in short, in the light of its own policy and the record, translate this Act into a 'set of guiding yardsticks,' admittedly now lacking. If that cannot be done, there should be no judicial approval for an order to cease and desist from we don't know what.
57
If that were done, I should be included to accept the Government's argument that, along with affirmance, enforcement may be ordered. I see no real sense, when the case is already before the Court and is approved, in requiring one more violation before its obedience will be made mandatory on pain of contempt. But, as this order stands, I am not surprised that enforcement should be left to some later generation of judges.
1
46 F.T.C. 379, 386.
2
38 Stat. 730, as amended, 49 Stat. 1526, 15 U.S.C. § 13, 15 U.S.C.A. § 13.
3
46 F.T.C. 379, 387.
4
Federal Trade Comm. v. Morton Salt Co., 1948, 334 U.S. 37, 51—52, 68 S.Ct. 822, 830, 831, 92 L.Ed. 1196; cf. International Salt Co. v. United States, 1947, 332 U.S. 392, 398—400, 68 S.Ct. 12, 16—17, 92 L.Ed. 20.
5
Federal Trade Comm. v. Cement Institute, 1948, 333 U.S. 683, 726—727, 68 S.Ct. 793, 815—816, 92 L.Ed. 1009; 38 Stat. 722, 15 U.S.C. § 47, 15 U.S.C.A. § 47.
6
Federal Trade Comm. v. Morton Salt Co., 1948, 334 U.S. 37, 51—52, 68 S.Ct. 822, 830, 831, 92 L.Ed. 1196; cf. National Labor Relations Board v. Express Publishing Co., 1941, 312 U.S. 426, 436 437, 61 S.Ct. 693, 699—700, 85 L.Ed. 930.
7
'True, the Commission did not merely prohibit future discounts, rebates, and allowances in the exact mathematical percentages previously utilized by respondent. Had the order done no more than that, respondent could have continued substantially the same unlawful practices despite the order, by simply altering the discount percentages and the quantities of salt to which the percentages applied.' Federal Trade Comm. v. Morton Salt Co., 1948, 334 U.S. 37, 52—53, 68 S.Ct. 822, 831, 92 L.Ed. 1196. The discussion following these words in the Morton Salt case, of certain aspects of the order in question there, manifestly affords no support to Ruberoid's contention here. Id., 334 U.S. at pages 53—54, 68 S.Ct. at pages 831, 832.
8
Ruberoid suggests a fourth category of purchasers manufacturers—and contends that the order is too broad in that it prohibits discrimination in sales to that group, e.g., in sales of shingles to competing manufacturers of prefabricated houses. We need not consider whether such an order would be too broad because we do not think the order here applies to such sales. By its terms, the order covers only sales to those competitively engaged 'in the resale or distribution of such products (i.e., 'asbestos or asphalt roofing materials'),' and not sales to those who use roofing materials in the fabrication of wholly new and different products.
9
'(N)othing herein contained shall prevent differentials which make only due allowance for differences in the cost of manufacture, sale, or delivery resulting from the differing methods or quantities in which such commodities are to such purchasers sold or delivered * * *.' 49 Stat. 1526, 15 U.S.C. § 13(a), 15 U.S.C.A. § 13(a). '(N)othing herein contained shall prevent a seller rebutting the prima-facie case thus made by showing that his lower price * * * was made in good faith to meet an equally low price of a competitor * * *.' 49 Stat. 1526, 15 U.S.C. § 13(b), 15 U.S.C.A. § 13(b), Standard Oil Co. v. Federal Trade Comm., 1951, 340 U.S. 231, 71 S.Ct. 240, 95 L.Ed. 239. Ruberoid does not complain of the omission from the order of the statutory provisos relating to the seller's right to select its own customers and to price changes in response to changing conditions affecting the market for, or the marketability of, the goods concerned. Hence we do not deal with those defenses here.
10
Cf. Federal Trade Comm. v. Morton Salt Co., 1948, 334 U.S. 37, 44—45, 68 S.Ct. 822, 827, 92 L.Ed. 1196, cost justification; Federal Trade Comm. v. A. E. Staley Mfg. Co., 1945, 324 U.S. 746, 65 S.Ct. 971, 89 L.Ed. 1338, meeting-competition justification.
11
Where the Commission seeks both affirmance and enforcement of its order in one proceeding, contending that the seller has continued in its unlawful practices since the order was issued, the court, in deciding whether the order should be affirmed, will of course review the determination of the Commission in the ordinary manner. But questions thus settled will not be open in deciding whether the order has been violated and should therefore be enforced.
12
191 F.2d 294, 295.
13
38 Stat. 735, as amended, 15 U.S.C. § 21, 15 U.S.C.A. § 21.
14
Brief for the Federal Trade Commission in No. 448, p. 16.
15
E.g., Federal Trade Comm. v. Whitney & Co., 9 Cir., 1951, 192 F.2d 746; Federal Trade Comm. v. Standard Brands, Inc., 2 Cir., 1951, 189 F.2d 510; Federal Trade Comm. v. Herzog, 2 Cir., 1945, 150 F.2d 450; Federal Trade Comm. v. Baltimore Paint & Color Works, 4 Cir., 1930, 41 F.2d 474; Federal Trade Comm. v. Balme, 2 Cir., 1928, 23 F.2d 615; Federal Trade Comm. v. Standard Education Society, 7 Cir., 1926, 14 F.2d 947. The last three cases cited arose under the Federal Trade Commission Act, but since the Clayton Act provisions involved here are identical with the corresponding provisions of the Federal Trade Commission Act prior to 1938, 38 Stat. 720, the decisions make no distinction between them.
16
'To the extent that the order of the Commission is affirmed, the court shall thereupon issue its own order commanding obedience to the terms of such order of the Commission.' 52 Stat. 113, 15 U.S.C. § 45(c), 15 U.S.C.A. § 45(c). Unless the party subject to an order issued under the provisions of the Federal Trade Commission Act files a petition for review within sixty days, the order becomes final and its violation punishable. 52 Stat. 113—114, 15 U.S.C. § 45(g) and (l), 15 U.S.C.A. § 45(g, l).
17
E.g., F.T.C. Ann.Rep. 7—8 (1951); F.T.C. Ann.Rep. 12 (1948); F.T.C. Ann.Rep. 13 (1947); F.T.C. Ann.Rep. 12 (1946).
18
E.g., H.R.10176, 75th Cong., 3d Sess.; H.R.3402, 81st Cong., 1st Sess.
19
Accord, e.g., Federal Trade Comm. v. Fairyfoot Products Co., 7 Cir., 1938, 94 F.2d 844; Butterick Co. v. Federal Trade Comm., 2 Cir., 1925, 4 F.2d 910; L. B. Silver Co. v. Federal Trade Comm., 6 Cir., 1923, 292 F. 752.
1
A comprehensive study has pointed out the early failure of this Commission (and it applies as well to others) to clarify and develop the law and thereby avoid litigation by careful published opinions. Henderson, The Federal Trade Commission 334.
2
Ruberoid Co. v. Federal Trade Commission, 2 Cir., 189 F.2d 893, 894.
3
15 U.S.C. § 21, 15 U.S.C.A. § 21, vests enforcement in the Interstate Commerce Commission where applicable to certain regulated common carriers; in the Federal Communications Commission as to wire and radio communications; Civil Aeronautics Board as to air carriers; Federal Reserve Board as to banks, etc., and Federal Trade Commission as to all other types of commerce.
4
15 U.S.C. § 21, 15 U.S.C.A. § 21.
5
15 U.S.C. §§ 1—4, 8, 9, 15 U.S.C.A. §§ 1—4, 8, 9.
6
15 U.S.C. § 13(a), 15 U.S.C.A. § 13(a).
7
For emphasis and appreciation of this concept of American administrative law and of the function of the administrative tribunal as we have evolved it, I am indebted to an unpublished treatise by Dr. Robert F. Weissenstein, whose Viennese and European background, education and practice gave him a perspective attained with difficulty by us who are so accustomed to our own process.
Lord Chancellor Herschell has employed a different but effective figure. 'The truth is,' said he, 'the legislation is a skeleton piece of legislation left to be filled up in all its substantial and material particulars by the action of rules to be made by the Board of Trade. * * * it was the intention of the Legislature having expressed the general object, and having provided the necessary penalty, to leave the subordinate legislation, so to speak, to be carried out by the Board of Trade.' Institute of Patent Agents v. Lockwood, (1894) A.C. 347, 356—357.
For an excellent study of English 'Delegated Legislation Today' see Willis, Parliamentary Powers of English Government Departments, c. II, p. 47. For the extent to which this system has been used in England, see Lord Macmillan, Local Government Law and Administration in England and Wales, Vol. I, Preface.
8
The legislative history of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., 29 U.S.C.A. § 201 et seq., exemplifies the choice which Congress must make between itself completing the legislation, and delegating the completion to an administrative agency. H.R.Rep. No. 2738, 75th Cong., 3d Sess., sets forth a summary of both the House Bill and the Senate Bill. The Senate Bill provided for the creation of a Labor Standards Board composed of five members, which was empowered to declare from time to time, for such occupations as
are brought within the bill, minimum wages 'which shall be as nearly adequate as economically feasible without curtailing opportunity for employment, to maintain a minimum standard of living necessary for health, efficiency, and general well being * * *' but not in excess of 40 cents per hour. Id., at 15. Similar provisions empowered the Board to determine maximum hours, provided that in no case should the maximum be set at less than 40 hours. Id., at 16. Likewise, the Board was empowered to require the elimination of substandard labor conditions. Id., at 17.
The House Bill, on the other hand, itself laid down the minimum wage and maximum hour requirements, id., 22—23, and gave to the Secretary of Labor discretion only to determine which industries were within the terms of the law, plus the power to investigate compliance with the law. Id., at 23. The Act as ultimately adopted followed the House Bill; although there was created the office of Administrator of the Wage and Hour Division in the Department of Labor, the Administrator was given discretion only in minor matters relating to the applicability of the congressional standards. 52 Stat. 1060, 29 U.S.C. § 201 et seq., 29 U.S.C.A. § 201 et seq.
The Administration favored the plan of delegating legislative discretion to an independent administrative body to apply general standards to concrete cases. See testimony of Secretary of Labor Frances Perkins, Joint Hearings before the Senate Committee on Educations and Labor and the House Committee on Labor on S. 2475 and H.R. 7200, 75th Cong., 1st Sess. 178. However, the attempt of Congress itself to complete this complex law for enforcement by the Executive, through the courts, not only flooded the courts with litigation, but the courts' interpretation of the Act contrary to the policy which Congress thought it had indicated had disastrous consequences. 61 Stat. 84, 29 U.S.C. § 251 et seq., 29 U.S.C.A. § 251 et seq.
9
If the independent agencies could realize how much trustworthiness judges give to workmanlike findings and opinions and how their causes are prejudiced on review by slipshod, imprecise findings and failure to elucidate by opinion the process by which ultimate determinations have been reached, their work and their score on review would doubtless improve. See Henderson, The Federal Trade Commission, c. VI, p. 327. See also Commission on Organization of the Executive Branch of the Government, Task Force Report on Regulatory Commissions (App. N.) pp. 129—130.
| 78
|
343 U.S. 562
72 S.Ct. 985
96 L.Ed. 1142
UNITED STATES et al.v.GREAT NORTHERN RY. CO.
No. 151.
Argued Jan. 8, 9, 1952.
Decided June 2, 1952.
Rehearing Denied Oct. 13, 1952.
See 73 S.Ct. 4.
Mr. Ralph S. Spritzer, Washington, D.C., for appellants, United States, and Interstate Commerce Commission.
Mr. Arnold H. Olsen, Butte, Mont., for appellants, Vaier Community Club and Board of R.R. Com'rs of Montana.
Mr. Art Jardine, Great Falls, Mont., for appellant, Montana Western Ry. Co.
Mr. Louis E. Torinus, Jr., St. Paul, Minn., for appellee.
Mr. Chief Justice VINSON delivered the opinion of the Court.
1
This is a suit to enjoin enforcement of an order of the Interstate Commerce Commission establishing joint rates over through routes. In this case, unlike Thompson v. United States, 343 U.S. 549, 72 S.Ct. 978, the through routes in question already exist since the carriers concerned have continuously provided through service over the same through routes at a combination of separately established rates. The Commission did not change any route or alter the total amount charged for any shipment but did order the establishment of joint rates in place of the combination rates. The Commission also ordered a division of revenues between the carriers in order to provide additional revenue for one financially weak carrier. The question presented is whether the Commission has power to establish joint rates for the purpose of assisting a carrier to meet its financial needs.
2
The Montana Western Railway Company, incorporated in 1909, furnishes the only rail service over the twenty miles between Valier, montana, and Conrad, Montana, where connection is made with the interstate rail lines of the appellee Great Northern Railway. Appellee and a land irrigation company, new called the Valier Company, furnished the money to build the railroad. The Montana Western's stock is owned by the Valier Company and its bonds in the sum of $165,000 are held by appellee.
3
Operation of the Montana Western has been unprofitable. An average annual deficit of over $18,000 has been experienced during the fifteen years preceding this case. The Montana Western's general manager estimated that the total annual revenue deficiency under existing rates would amount to $33,825. In addition to the anticipated operating losses, continued operation of the Montana Western would require construction of a new bridge and a new roundhouse and replacement of a large number of cross ties. The Montana Western has not been able to satisfy either its bonded indebtedness or the interest thereon. Moreover, appellee has advanced money to pay operating losses to the extent that Montana Western's total debt to appellee amounted to $737,604 at the beginning of these proceedings. Apparently because of the Montana Western's value as a feeder line providing profitable traffic, appellee offered to provide additional funds for the rehabilitation of the Montana Western and offered to extend the maturity date of the mortgage bonds. However, the Montana Western's officers refused to extend the bonds on the ground that there was no hope of ever paying off the indebtedness. Thereafter, appellee announced that: 'In view of the Montana Western's attitude * * * the Great Northern cannot be expected (to make further cash advances).'
4
The Montana Western applied to the Interstate Commerce Commission for the permission to abandon its entire line required under 49 U.S.C. § 1(18—22), 49 U.S.C.A. § 1(18—22) on the ground that, without financial assistance from appellee, continued operation of the line was not economically feasible. After hearings in the abandonment proceeding had demonstrated the financial plight of the Montana Western, the Valier Community Club, representing shippers in the Valier area, instituted another action before the Commission.1 The shippers' purpose was to preserve existing through routes originating at Valier by securing for the Montana Western the additional revenue needed for continued operation. Since ninety percent of the Montana Western's revenue is derived from grain traffic, additional revenue necessarily had to be obtained through adjustment in the grain rate structure.
5
Grain now moves on through routes from Valier over the Montana Western line to Conrad where appellee continues the through shipment to market. Under the existing grain rate structure, a shipper pays a through rate of 71 1/2 cents per hundred pounds on a shipment from Valier to Minneapolis. This through rate is also called a combination rate because it is a combination of Montana Western's separately established proportional rate of 9 cents from Valier to Conrad plus appellee's proportional rate of 62 1/2 cents to Minneapolis.2 Complainant Valier Community Club did not propose to alter any existing through routes or change the amount of any through rates. Rather, complainant asked the Commission to increase Montana Western's revenue by substituting 'joint rates' for the present combination rate and determining a division of joint rates that would have the effect of increasing the Montana Western's present compensation of 9 cents for the Valier to Conrad segment of the through shipments.
6
After hearing evidence on the complaint, an Examiner recommended that the Montana Western's application for abandonment be denied because of the public need for railroad service in the Valier area. He further recommended that joint rates on grain be established from Valier to all interstate points on appellee's lines at the level of the present combination rates. After comparing division of revenues on similar joint rates established on other lines in the area, the Examiner recommended that the Montana Western receive a division of 10 cents, an increase of 1 cent over the present proportional rate. The Interstate Commerce Commission agreed that the public need for rail service in the Valier area called for denial of the abandonment application. The Commission also agreed that the public interest required establishment of joint rates. However, the Commission, stating that financial needs were a justification for relatively high divisions, ordered for example, that the Montana Western receive 16.3 cents as its share of the 71 1/2 cents through rate on a shipment from Valier to Minneapolis. 275 I.C.C. 512. It is conceded by the Commission in this Court that its order establishing joint rates was but a means to the end of assisting the Montana Western to meet obvious financial needs.
7
Appellee brought this action in the District Court to enjoin enforcement of the part of the Commission's order establishing joint rates and divisions of revenues. A three-judge court rejected the Commission's contention that Section 15, paragraphs (3) and (6), of the Interstate Commerce Act authorized the order; instead, it enjoined enforcement of the order as one prohibited by a provision of Section 15(4).3 96 F.Supp. 298. The relevant statutes are set forth in the margin.4 The case was brought here on direct appeal by the United States, the Interstate Commerce Commission, the Valier Community Club, the Montana Western Railroad, and the Board of Railroad Commissioners of the State of Montana, appellants. 28 U.S.C. (Supp. IV) § 1253, 28 U.S.C.A. § 1253.
8
First. Under Section 15(3), the Commission is empowered to 'establish through routes, joint classifications, and joint rates, fares, or charges'. The only pertinent limitation to their establishment found in Section 15(3) itself is that the Commission deem such action 'necessary or desirable in the public interest'.
9
Once joint rates are lawfully established, the Commission is authorized by Section 15(6) to prescribe 'just, reasonable, and equitable divisions' of revenue between the participating carriers and to determine such divisions by giving due consideration to various listed factors, including 'the amount of revenue required' by participating carriers. In Akron, C. & Y.R. Co. v. United States, (The New England Divisions Case), 1923, 261 U.S. 184, 189 195, 43 S.Ct. 270, 273, 275, 67 L.Ed. 605, this Court held that Section 15(6) was designed for affirmative use in relieving the financial needs of weak carriers.5
10
Section 15(4) conditions the powers granted the Commission in Section 15(3). Prior to the Transportation Act of 1940, Section 15(4) contained two provisions, one being the restriction on the Commission's power to establish a through route that would require a carrier to short haul itself, considered in Thompson v. United States, 343 U.S. 549, 72 S.Ct. 978, and the other granting the Commission additional power to establish through routes in emergencies. The 1940 revision of Section 15(4) retained the emergency through route provision, increased the power of the Commission to establish through routes which require a carrier to short haul itself and added the following provision:
11
'No through route and joint rates applicable thereto shall be established by the Commission for the purpose of assisting any carrier that would participate therein to meet its financial needs.'
12
The Commission's order in this case did not establish any through route, but did establish joint rates for the admitted purpose of assisting the Montana Western Railway to meet its financial needs. As stated above, the District Court held that such an order was prohibited by the abovequoted provision of Section 15(4).
13
Second. Much of appellants' argument against the holding of the District Court misses the mark. Appellants construe the prohibition against establishing through routes for the purpose of assisting a carrier to meet its financial needs as limited to cases where short hauling is a problem. Appellants would have the Court read the financial assistance prohibition as merely another restriction on the Commission's power to require a carrier to short haul itself in addition to the restriction against short hauling found in the first provision of Section 15(4). Since existence of a short-hauling problem presupposes the existence of alternate rail connections, such a problem cannot arise in this case where the Montana Western is the only carrier serving Valier.
14
Appellants would have the Court ignore the fact that the financial assistance prohibition stands as a separate sentence in Section 15(4). Certainly that sentence is grammatically capable of independent significance. And it may be noted that the sentence is directed to a specific problem that arose in the administration of the Commission's power under Section 15(3) and (4) to establish through routes—a problem quite separate from that presented by the restrictionagainst short hauling. This different problem arises when a carrier asks the Commission to establish a through route, not primarily to serve any need of the shipping public for additional routes, but because the carrier needs additional revenue which it seeks to obtain by diverting to its own line traffic served by other routes. The question presented in such a case is whether the Commission's power to establish through routes 'in the public interest' extends to establishing through routes, with the resulting rearrangement in the movement of rail traffic, for the purpose of meeting the financial needs of a carrier. This question was presented in the through route litigation that led to the 1940 revision of Section 15(4)6 and was repeatedly raised during the legislative consideration of the amendments to Section 15(4).7
15
As revised in 1940, Section 15(4) deals at length with the short-haul problem and, in addition, contains the separate sentence prohibiting the establishment of through routes for the purpose of assisting a carrier to meet its financial needs. Since this prohibition stands an an independent sentence dealing with an independent problem, we cannot accept appellants' suggestion that the sentence can be ignored unless a short-hauling problem is also involved in the case.
16
Third. Although the prohibition against establishment of through routes and joint rates applicable thereto for the purpose of assisting a carrier to meet its financial needs cannot be read as limited to short-hauling situations, it by no means follows that the prohibition may be read as applicable to all Commission orders establishing joint rates.
17
The Interstate Commerce Act contemplates the existence of through routes in the absence of joint rates.8 And this Court expressly has approved the Commission's consistent recognition of the existence of through routes whether the through rates applicable thereto are joint rates or combinations of separately established rates.9 As a result, the establishment of joint rates is an act separate and distinct under the statute from the establishment of through routes. In this case, the Commission ordered the establishment of joint rates over through routes, Valier to Minneapolis for example, which were already in existence on a combination of proportional rates. Under the Commission's order, the same cars would move over the same racks to the same destinations and at the same through rates a § before. It is a matter of little concern to shippers whether combination rates or joint rates at the same level are charged, so long as the through route continues to be available.10 Whatever theories may be advanced as to determining the existence of a through route where no traffic passes over the route, see Thompson v. United States, 343 U.S. 549, 72 S.Ct. 978, it is not questioned that through routes over the Montana Western and appellee's lines long have been in existence. These through routes were not established by the Commission in this case.
18
Commission action establishing joint rates in lieu of combination rates for service over through routes is a proper form of regulation.11 It is crucial to this case that the financial-needs prohibition of Section 15(4) does not limit the Commission's power to establish joint rates generally, but deals only with the power to establish a 'through route and joint rates applicable thereto', i.e., those joint rates applicable to a through route established by the Commission. Since the order in this case did not establish a through route, Section 15(4) does not affect the Commission's power in this case. And, because joint rates published by two or more carriers are by definition always applicable to a through route over the lines of those carriers, reading the financial assistance prohibition as affecting this order establishing only joint rates for existing through routes would render the words 'applicable thereto' surplusage, attributing to Congress a useless and misleading use of words.
19
It is one form of regulation to redistribute revenues between connecting carriers by determining divisions of revenues received on existing through routes. The economic ramifications are quite different if the Commission establishes through routes which divert traffic to the lines of a financially weak carrier. Such action not only serves to assist that carrier financially but can also, at the same time, cause important changes in the movement of traffic, diverting traffic to a new geographic area at the expense of other carriers and other areas. Congress amended Section 15(4) to prohibit tinkering with through routes for the purpose of assisting a carrier to meet its financial needs. But the provision of Section 15(4)—the restrictions against short hauling, the financial-needs prohibition and the emergency route provision—all deal with the Commission's power to establish through routes.
20
Congress could well have prohibited the Commission from considering financial needs in issuing any order under Section 15(3). This was proposed in one bill and expressly rejected by a congressional committee.12 Or, Congress could have prohibited consideration of financial needs in ordering establishment of joint through routes where through routes were in existence, as was also proposed.13 Instead, Congress adopted a provision prohibiting reliance on financial needs only in respect to orders establishing through routes. It is our judicial function to apply statutes on the basis of what Congress has written, not what Congress might have written. Where, as here, the Commission did not establish through routes, Section 15(4) has no application.14
21
Beginning with the Transportation Act of 1920, Congress has regulated the railroads not only to prohibit such abuses as excessive and discriminatory rates but also with the purpose of assuring adequate transportation service. The New England Divisions Case, supra. The relationship between this transportation policy and the power of the Commission to prescribe divisions of joint rates was described by the Court in United States v. Abilene & Southern R. Co., 1924, 265 U.S. 274, 284—285, 44 S.Ct. 565, 568, 68 L.Ed. 1016:
22
'It is settled that in determining what the divisions should be, the Commission may, in the public interest, take into consideration the financial needs of a weaker road, and that it may be given a division larger than justice merely as between the parties would suggest 'in order to maintain it in effective operation as part of an adequate transportation system,' provided the share left to its connections is 'adequate to avoid a confiscatory result.' Dayton-Goose Creek R. Co. v. United States, 263 U.S. 456, 477, 44 S.Ct. 169, (171), 68 L.Ed. (388); New England Divisions Case, 261 U.S. 184, 194, 195, 43 S.Ct. 270, (274, 275), 67 L.Ed. 605.'
23
The power of the Commission to establish joint rates is similarly essential to the congressional policy of assuring adequate transportation service, as expressly stated in the New England Divisions Case, supra, 261 U.S. at 194—195, 43 S.Ct. at pages 270—275, 67 L.Ed. 605. The Transportation Act of 1940 reenacted the provisions of the Interstate Commerce Act implementing that policy and added that the Act was to be administered so as to develop, coordinate, and preserve an adequate 'national transportation system.'15 Since the financial assistance prohibition of Section 15(4), added by the Transportation Act of 1940, restricted the Commission's power over joint rates only in respect to those joint rates applicable to through routes established by the Commission, the Commission's power to establish joint rates over existing through routes remains unimpaired.
24
As a result, the Commission is empowered, in the public interest, to cause a redistribution of revenue between two carriers participating in transportation of through traffic. It is immaterial, from the viewpoint of the public, whether the revenue was obtained by charging joint rates established by agreement of the carrers or by a combination of separately established rates. And, from the viewpoint of the national transportation system, it is immaterial whether an independently owned rail line is saved from abandonment by such a redistribution of revenue or whether permission to abandon a branch of a main line carrier is denied on the basis of a similar reallocation of revenue. Just as the Commission may examine into the value of a branch line as 'feeding' additional traffic to the main line of a single carrier, the value of the Montana Western as producing traffic for appellee need not be disregarded by the Commission.16 Indeed, the Montana Western's value in producing profitable traffic for appellee is shown by the fact that appellee was willing to continue and even increase its financial support while the Montana Western itself chose to seek abandonment.
25
We hold that the District Court erred in enjoining the Commission's order as prohibited by Section 15(4). Apart from the question of the Commission's power to establish joint rates, the Commission's order establishing joint rates and divisions in this case is attacked for want of essential findings and for lack of substantial evidence justifying continued operation of this particular carrier. Since it is the practice of this Court not to review an administrative record in the first instance after finding that a lower court has applied an incorrect principle of law,17 the case is remanded to the District Court for further proceedings not inconsistent with this opinion.
26
Reversed and remanded.
27
Mr. Justice BLACK, Mr. Justice JACKSON and Mr. Justice BURTON concur in the result.
1
Appellee was not a party before the Commission until this complaint was filed. The record of prior hearings in the abandonment proceeding was incorporated nto the complaint proceeding and appellee was afforded the opportunity to cross-examine the witnesses who had previously testified.
2
The local rate from Conrad, Montana, to Minneapolis is 65 1/2 cents. When a through rate consists of a combination of rates for intermediate distances, the rate for one segment of the sipment is referred to as a proportional rate where, as here, that rate is lower than the local rate over that segment. See Atchison, T. & S.F.R. Co. v. United States, 1929, 279 U.S. 768, 771, 49 S.Ct. 494, 495, 73 L.Ed. 947; Berry, A Study of Proportional Rates, 10 I.C.C.Pract.J. 545 (1943).
3
The Commission did not discuss Section 15(4) in its report. We were advised at the bar of this Court that the question presented by that Section was first raised before the Commission on a petition for reconsideration which was denied without opinion. Since appellants including the Commission, have considered the Section 15(4) q uestion as having been properly raised before the Commission, we also treat the question as properly before us. Compare Unemployment Compensation Commission v. Aragon, 1946, 329 U.S. 143, 155, 67 S.Ct. 245, 251, 91 L.Ed. 136; United States v. Hancock Truck Lines, 1945, 324 U.S. 774, 65 S.Ct. 1003, 89 L.Ed. 1357; General Transp. Co. v. United States, D.C.Mass.1946, 65 F.Supp. 981, affirmed, 1946, 329 U.S. 668, 67 S.Ct. 75, 91 L.Ed. 590, (waiver issue not raised on appeal).
4
'(3) The Commission may, and it shall whenever deemed by it to be necessary or desirable in the public interest, after full hearing upon complaint or upon its own initiative without complaint, establish through routes, joint classifications, and joint rates, fares, or charges, applicable to the transportation of passengers or property
by carriers subject to this part, * * *.' 54 Stat. 911, 49 U.S.C.A. § 15(3), 49 U.S.C.A. § 15(3).
'(4) In establishing any such through route the Commission shall not (except as provided in section 3, and except where one of the carriers is a water line) require any carrier by railroad, without its consent, to embrace in such route substantially less than the entire length of its railroad and of any intermediate railroad operated in conjunction and under a common management or control therewith, which lies between the termini of such proposed through route,(a) unless such inclusion of lines would make the through route unreasonably long as compared with another practicable through route which could otherwise be established, or (b) unless the Commission finds that the through route proposed to be established is needed in order to provide adequate, and more efficient or more economic, transportation: Provided, however, That in prescribing through routes the Commission shall, so far as it consistent with the public interest, and subject to the foregoing limitations in clauses (a) and (b), give reasonable preference to the carrier by railroad which originates the traffic. No through route and joint rates applicable thereto shall be established by the Commission for the purpose of assisting any carrier that would participate therein to meet its financial needs. In time of shortage of equipment, congestion of traffic, or other emergency declared by the Commission, it may (either upon complaint or upon its own initiative without complaint, at once, if it so orders, without answer or other formal pleadings by the interested carrier or carriers, and with or without notice, hearing, or the making or filing of a report, according as the Commission may determine) establish temporarily such through routes as in its opinion are necessary or desirable in the public interest.' 54 Stat. 911—912, 49 U.S.C. § 15(4), 49 U.S.C.A. § 15(4).
'(6) Whenever, after full hearing upon complaint or upon its own initiative, the Commission is of opinion that the divisions of joint rates, fares, or charges, applicable to the transportation of passengers or property, are or will be unjust, unreasonable, inequitable, or unduly preferential or prejudicial as between the carriers parties thereto (whether agreed upon by such carriers, or any of them, or otherwise established), the Commission shall by order prescribe the just, reasonable, and equitable divisions thereof of to be received by the several carriers, * * *. In so prescribing and determining the divisions of joint rates, fares and charges, the Commission shall give due consideration, among other things, to the efficiency with which the carriers concerned are operated, the amount of revenue required to pay their respective operating expenses, taxes, and a fair return on their railway property held for and used in the service of transportation, and the importance to the public of the transportation services of such carriers; and also whether any particular participating carrier is an originating, intermediate, or delivering line, and any other fact or circumstance which would ordinarily, without regard to the mileage haul, entile one carrier to a greater or less proportion than another carrier of the joint rate, fare or charge.' 41 Stat. 486, 49 U.S.C. § 15(6), 49 U.S.C.A. § 15(6).
5
The Montana Western and appellee maintain joint rates established by agreement for many commodities, including coal, lumber and livestock. If it had happened that a joint rate had been agreed upon for grain (or that the bulk of Montana Western's revenues were derived from commodities that now move on joint rates), the Commission could have diverted additional revenue to the Montana Western without resort to the power granted in Section 15(3).
6
In the Subiaco litigation, a short line carrier asked the Commission to establish a through route that included its line. The Commission's report stated the questions presented as (1) the applicability of the short-haul limitation of Section 15(4), and (2) whether it was in the public interest to establish a new through route so that the financially weak carrier would benefit from new business and resulting increased revenues. The Commission ordered establishment of the new route over the dissent of one Commissioner on the second question. Ft. Smith, Subiaco & R.I.R. Co. v. Alabama & Vicksburg R. Co., 107 I.C.C. 523 (1926). Reaching only the short-haul question, this Court held the order invalid in United States v. Missouri Pacific R. Co., 1929, 278 U.S. 269, 49 S.Ct. 133, 73 L.Ed. 322. Efforts to amend Section 15(4) began with the final decision in the Subiaco litigation. See Thompson v. United States, 343 U.S. 549, 72 S.Ct. 978.
7
See Hearings before a Subcommittee of the House Committee on Interstate and Foreign Commerce on H.R. 5364, 74th Cong., 2d Sess. 70—71 (1936); Hearings before a Subcommittee of the House Committee on Interstate and Foreign Commerce on S.1261, 75th Cong., 2d and 3d Sess. 104—106, 159—160 (1937, 1938); Hearings before a Subcommittee of the Senate Committee on Interstate Commerce on S.1085, 76th Cong., 1st Sess. 88—89 (1939); Hearings before a Subcommittee of the House Committee on Interstate and Foreign Commerce on H.R. 3400, 76th Cong., 1st Sess., 232—234 (1939). See also S. 1261, 75th Cong., 1st Sess.; S.Rep.No.404, 75th Cong., 1st Sess. 3 (1937).
8
It is the duty of every carrier to establish reasonable through routes but there is no corresponding duty to establish joint rates with other carriers. 49 U.S.C. § 1(4), 49 U.S.C.A. § 1(4). Joint rates may be established either by agreement of the carriers, 49 U.S.C. § 6(4), 49 U.S.C.A. § 6(4), or by Commission order, 49 U.S.C. § 15(3), 49 U.S.C.A. § 15(3). Section 6(1) of the Interstate Commerce Act requires that a carrier file and post all rates, fares, and charges between different points on its own routes and between points on the route of any other carrier 'when a through route and joint rate have been established. If no joint rate over the through route has been established, the several carriers in such through route shall file (and post) the separately established rates, fares and charges applied to the through transportation.' 49 U.S.C. § 6(1), 49 U.S.C.A. § 6(1). See W. P. Brown Lumber Co. v. Louisville & N.R. Co., 1937, 299 U.S. 393, 395, 57 S.Ct. 265, 266, 81 L.Ed. 301.
9
See St. Louis Southwestern R. Co. v. United States, 1917, 245 U.S. 136, 139, 38 S.Ct. 49, 50, 62 L.Ed. 199, quoted in Thompson v. United States, 343 U.S. 549, 72 S.Ct. 978. See also Virginian R. Co. v. United States, 1926, 272 U.S. 658, 666, 47 S.Ct. 222, 225, 71 L.Ed. 463.
10
See Louisville & N.R. Co. Sloss-Sheffield Steel & Iron Co., 1925, 269 U.S. 217, 234, 46 S.Ct. 73, 79, 70 L.Ed. 242.
11
Regulation in 'the form of compelling the substitution of a joint rate for a through rate made by a combination of local rates' was approved in St. Louis Southwestern R. Co. v. United States, note 9, supra, 245 U.S. at page 142, 38 S.Ct. at page 51, 62 L.Ed. 199.
12
S.Rep.No.404, 75th Cong., 1st Sess. 3 (1937).
13
Hearings before a Subcommittee of the House Committee on Interstate and Foreign Commerce on S. 1261, 75th Cong., 2d and 3d Sess. 106 (1937, 1938); Hearings before a Subcommittee of the House Committee on Interstate and Foreign Commerce on H.R. 3400, 76th Cong., 1st Sess. 234 (1939).
14
The Commission has recognized in prior cases that in establishing joint rates over existing through routes, the provisions of Section 15(4) respecting establishment of through routes are not applicable. See Beaman Elevator Co. v. Chicago & N.W.R. Co., 148 I.C.C. 444, 451 (1928), 155 I.C.C. 313 (1929).
15
54 Stat. 899 (1940).
16
In passing upon applications to abandon branch lines under 49 U.S.C. § 1(18—20), 49 U.S.C.A. § 1(18—20), the Commission has required a showing of the 'feeder value' of the branch by crediting to that branch the gross system revenues less the estimated cost of moving the traffic over the rest of the system. E.g., Chicago, R.I. & P.R. Co. Trustees Abandonment, 254 I.C.C. 187, 190 (1943). See Cherington, The Regulation of Railroad Abandonments (1948), 159—166.
17
Compare Universal Camera Corp. v. National Labor Relations Board, 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, with O'Leary v. Brown-Pacific-Maxon, Inc., 1951, 340 U.S. 504, 508, 71 S.Ct. 470, 472, 95 L.Ed. 483.
| 78
|
343 U.S. 711
72 S.Ct. 994
96 L.Ed. 1237
ROBERTSONv.UNITED STATES.
No. 388.
Argued March 31, 1952.
Decided June 2, 1952.
Mr. Samuel E. Blackham, Provo, Utah, for petitioner.
Mr. Marvin E. Frankel, Washington, D.C., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Petitioner is a musician and composer who between the years 1936 and 1939 composed a symphony. In 1945 Henry H. Reichhold, a philanthropist, established a music award offering $25,000, $5,000, and $2,500 for the three best symphonic works written by native-born composers of this hemisphere. The terms of the offer provided that none of the compositions could be published or publicly performed prior to entry in the contest and that each composition receiving an award would remain the property of the composer except that he would grant the Detroit Orchestra, Inc., (1) all synchronization rights as applied to motion pictures, (2) all mechanical rights as applied to phonograph recordings, electrical transcriptions and music rolls, and (3) the exclusive right to authorize the first performance of the composition in each of the countries whose citizens were eligible to enter the contest and to designate the publisher of the composition.
2
Petitioner submitted his symphony and on December 14, 1947, won the $25,000 award. He included that amount in his 1947 income tax return as gross income, claimed the benefits of § 107(b) of the Internal Revenue Code1, 26 U.S.C. (1946 ed.) § 107(b), 53 Stat. 878, as amended, 26 U.S.C.A. § 107(b), and computed the tax as though the $25,000 had been received ratably during the years 1937, 193 8, and 1939. Thereafter he filed a claim for refund on the ground that the award constituted a nontaxable gift.2 The Commissioner did not allow the claim but determined a deficiency on the ground that the tax should have been computed under § 107(b) as though the award had been ratably received over the three-year period ending with 1947. Petitioner paid the deficiency, filed a supplemental claim for refund, and brought this suit to obtain it. The District Court, 93 F.Supp. 660, held that the award was a gift and not taxable by reason of § 22(b)(3) of the Internal Revenue Code, 26 U.S.C.A. § 22(b)(3). The Court of Appeals reversed. 190 F.2d 680. The case is here on certiorari, 342 U.S. 896, 72 S.Ct. 231, because of the conflict between that decision and McDermott v. Commissioner, 80 U.S.App.D.C. 176, 150 F.2d 585, decided by the Court of Appeals for the District of Columbia. And see Williams v. United States, 84 F.Supp. 362, 114 Ct.Cl. 1.
I.
3
In the legal sense payment of a prize to a winner of a contest is the discharge of a contractual obligation. The acceptance by the contestants of the offer tendered by the sponsor of the contest creates an enforceable contract. See 6 Corbin On Contracts § 1489; Restatement, Contracts, § 521. The discharge of legal obligations—the payment for services rendered or consideration paid pursuant to a contract—is in no sense a gift. The case would be different if an award were made in recognition of past achievements or present abilities, or if payment was given not for services, see Old Colony Trust Co. v. Commissioner, 279 U.S. 716, 730, 49 S.Ct. 499, 504, 73 L.Ed. 918, but out of affection, respect, admiration, charity or like impulses. Where the payment is in return for services rendered, it is irrelevant that the donor derives no economic benefit from it.
II.
4
Section 107(b)3 defines 'artistic work' as the 'musical' or 'artistic composition' of an individual, 'the work on which * * * covered a period of thirty-six calendar months or more from the beginning to the completion' of the composition. In case the gross income from a particular artistic work in the taxable year is not less than a particular percentage (not material here), the tax attributable to the income of the taxable year may be computed as though it had 'been received ratably over that part of the period preceding the close of the taxable year but not more than thirty-six calendar months.' The question is wether the amount of the prize should be taxed ratably over the 36 months ending with the close of 1947 (the taxable year in which it was received) or over the last 36 months of the period (1937 to 1939) when petitioner wrote the symphony.
5
The phrase in question, as it originated (H.R. 7378, 77th Cong., 2d Sess., § 128), read 'ratably over the period of thirty-six calendar months ending with the close of the taxable year.' In that form the present tax would have been computed as the Commissioner contended, viz. the tax would be laid over a period of 36 months extending back from the close of the taxable year. The change in wording does not seem to us to have made a change in meaning. The present words 'ratably over that part of the period preceding the close of the taxable year but not more than thirty-six calendar months' would on their face seem to refer to a period ending with the close of the taxable year and extending back a maximum of 36 months. That wording was adopted in order to treat the income as though it had 'been received ratably over (1) the part of the period of the work which preceded the close of the taxable year, or (2) a period of 36 calendar months, whichever of such periods is the shorter.' See S.Rep. No. 1631, 77th Cong., 2d Sess., p. 109. The House Conferees, in agreeing to the change, stated that it 'clarifies the language of the House bill.' H.R. Conf. Rep. No. 2586, 77th Cong., 2d Sess., p. 43. That history strongly suggests that the purpose was not to change the allowable period of allocation from one ending with the close of the taxable year to one covering any 36 months in the past when the work was done, but to prevent tax reduction by proration of income over a period of work greater than the duration of the work preceding the close of the taxable year. That is the construction given by Treasury Regulations 111, § 29.107—2;4 and while much more could be said, it seems to us that that construction fits the statutory scheme.
6
Affirmed.
7
Mr. Justice FRANKFURTER, not having heard the argument owing to illness, took no part in the disposition of this case.
8
Mr. Justice JACKSON dissents.
1
Section 107(b) provides: 'For the purposes of this subsection, the term 'artistic work or invention', in the case of an individual, means a literary, musical, or artistic composition of such individual or a patent or copyright covering an invention of or a literary, musical, or artistic composition of such individual, the work on which by such individual covered a period of thirty-six calendar months or more from the beginning to the completion of such composition or invention. If, in the taxable year, the gross income of any individual from a particular artistic work or invention by him is not less than 80 per centum of the gross income in respect of such artistic work or invention in the taxable year plus the gross income therefrom in previous taxable years and the twelve months immediately succeeding the close of the taxable year, the tax attributable to the part of such gross income of the taxable year which is not taxable as a gain from the sale or exchange of a capital asset held for more than 6 months shall not be greater than the aggregate of the taxes attributable to such part had it been received ratably over that part of the period preceding the close of the taxable year but not more than thirty-six calendar months.'
2
Section 22(b)(3) of the Internal Revenue Code provides:
'The following items shall not be included in gross income and shall be exempt from taxation under this chapter:
'The value of property acquired by gift, bequest, devise, or inheritance. * * *'
3
See note 1, supra.
4
Section 29.107—2 provides in part:
'The method of allocating the gross income from the artistic work or invention to the taxable years in which falls any of the calendar months (not exceeding 36 calendar months) included within the part of the period of work which precedes the close of the current taxable year may be illustrated by the following examples:
'Example (1). On October 1, 1942, A, an individual, who makes his returns on a calendar year basis and on the basis of cash receipts and disbursements, receives $36,000 in full payment for a musical composition, the work on which was commenced by A on July 10, 1938, and completed on January 29, 1943. Although the period of work covers 55 calendar months, allocations may be made to only the last 36 calendar months included within the part of the period of work which precedes the close of 1942 (the current taxable year). Therefore, $1,000 ($36,000 divided by 36) must be allocated to each of the 36 calendar months preceding January 1, 1943. Accordingly, $12,000 is allocated to 1940, $12,000 to 1941, and $12,000 to 1942 (the current taxable year).
'Example (2). Assume the same facts as in example (1) except that the period of work was commenced by A on July 1, 1941, and completed on September 1, 1944. Although the period of work covers 38 calendar months, allocations may be made to only the 18 calendar months which are included within the part of the period of work which precedes the close of 1942 (the current taxable year). Therefore, $2,000 ($36,000 divided by 18) must be allocated to each of 18 calendar months preceding January 1, 1943. Accordingly, $12,000 is allocated to 1941, and $24,000 to 1942 (the current taxable year).'
| 1112
|
343 U.S. 549
72 S.Ct. 978
96 L.Ed. 1134
THOMPSONv.UNITED STATES et al.
No. 513.
Argued and Submitted April 23, 1952.
Decided June 2, 1952.
Mr. Toll R. Ware, St. Louis, Mo., for appellant.
Mr. Samuel R. Howell, Washington, D.C., for appellee Federal Communications Commission.
Mr. G. M. Rebman, St. Louis, Mo., for appellee Omaha Grain Exchange.
Messrs. Philip B. Perlman, Sol. Gen., H. G. Morison and Ralph S. Spritzer, Washington, D.C., for appellee United States.
Mr. Chief Justice VINSON delivered the opinion of the Court.
1
The sole question before the Court in this case concerns the content of the term 'through route' as used in the Interstate Commerce Act.1
2
The question arises out of a controversy as to the shipment of grain to market from points in Kansas on the Central Branch of the Missouri Pacific Railroad. From Lenora, Kansas, a typical origin point, grain may be shipped eastward to the Kansas City market over Missouri Pacific lines via Atchison, Kansas, at a rate of 19 cents per hundred pounds. The Missouri Pacific also provides service from Lenora to Omaha, Nebraska, via Atchison, at the rate of 25.5 cents. Midway between Lenora and Atchison, at Concordia, Kansas, the Missouri Pacific connects with a line of the Chicago, Burlington & Quincy Railroad running in a northeasterly direction to Omaha. Concordia is listed by the carriers as a point for interchange of traffic and there is evidence that the Missouri Pacific and the Burlington offer through transportation via Concordia from Lenora to points on the Burlington line short of Omaha. But there is no evidence that any shipment has ever been made from Lenora to Omaha via the Burlington line or that the carriers have ever offered through service over that route, although the haul from Lenora to Omaha via the Burlington is approximately the same length as the haul from Lenora to Kansas City over the lines of the Missouri Pacific.
3
The Omaha Grain Exchange complained to the Interstate Commerce Commission that the rates published by appellant, Trustee for the Missouri Pacific, on grain shipped from Lenora and other Kansas origins are unreasonable and discriminate against Omaha in violation of Sections 1 and 3 of the Interstate Commerce Act.2 In the complaint it was contended that the route to Omaha via Concordia and the Bulington line 'is a practicable through route as provided in Section 15 of the Interstate Commerce Act, and that the rates to the market of Omaha should be no greater than the rates to the market of Kansas City.'
4
Section 15(3) of the Act provides that—
5
'The Commission may, and it shall whenever deemed by it to be necessary or desirable in the public interest, after full hearing upon complaint or upon its own initiative without complaint, establish through routes, joint classifications, and joint rates, fares, or charges, applicable to the transportation of passengers or property by carriers subject to this part, * * *.' 54 Stat. 911, 49 U.S.C. § 15(3), 49 U.S.C.A. § 15(3).
6
The Commission's power to establish through routes is limited by a provision of Section 15(4), quoted in the margin,3 whenever such action would require a carrier to short haul itself. Under that Section, a carrier may be required to short haul itself only where its own line makes the existing through route 'unreasonably long as compared with another practicable through route which could otherwise be established', or where the Commission makes special findings that a proposed through route 'is needed in order to provide adequate, and more efficient or more economic, transportation'.4 Establishment of a new through route from Lenora to Omaha, via the Burlington, would compel the Missouri Pacific to permit use of the Lenora-Concordia portion of its line in the new through route to Omaha in competition with the Missouri Pacific's own route from Lenora to Omaha via Atchison. As a result, establishment of a new through route as requested by the Omaha Grain Exchange admittedly invokes the restriction against short hauling in Section 15(4).
7
The parties dispute whether, on the record in this case, there is sufficient basis for making the findings required by Section 15(3) and (4) for the establishment of a through route. We do not reach this question because there was no attempt to make the inquiry and findings required by Section 15, the Commission finding that a through route from Lenora to Omaha via Concordia and the Burlington line was already in existence and, therefore, did not have to be 'established.' The Commission granted relief to the complainant Omaha Grain Exchange by finding that the sum of the local rate from Lenora to Concordia published by appellant and the local rate from Concordia to Omaha published by the Burlington (totaling 30 cents per hundred pounds) is an 'unreasonable' rate over the route from Lenora to Omaha via the Burlington. Appellant was ordered to provide transportation of grain from Lenor to Omaha at rates not exceeding the rates charged by the Miss ouri Pacific on like traffic to Kansas City (19 cents). The Commission did not consider the reasonableness of the rate published by appellant for the route from Lenora to Omaha via Atchison, nor is there any finding that the local rate from Lenora to Concordia published by appellant is itself either unreasonable or discriminatory. 278 I.C.C. 519, affirming Division 2, 272 I.C.C. 368.
8
Appellant sued in the District Court to enjoin enforcement of the Commission's order on the sole ground that the Commission erred in finding the existence of a through route from Lenora to Omaha via the Burlington with the result that the order, in effect, establishes a new through route without complying with the requirements of Section 15(3) and (4) of the Act. A three-judge District Court, one judge dissenting, sustained the Commission's order and dismissed appellant's complaint. The District Court concluded that 'evidence of physical interchange connection at Concordia, plus long established joint rates to some points on the Burlington short of Omaha, plus combination rates to Omaha,' furnished sufficient evidentiary basis for the Commission's finding of the existence of a through route. 101 F.Supp. 48, 52. The case is here on direct appeal. 28 U.S.C.(Supp. IV) § 1253, 28 U.S.C.A. § 1253.
9
Under the Interstate Commerce Act, a carrier must not only provide transportation service at reasonable rates over its own lines but has the additional duty 'to establish reasonable through routes with such other carriers, and just and reasonable rates * * * applicable thereto'.5 Through routes may be, and ordinarily are, established by the voluntary action of connecting carriers. Since 1906, through routes may also be established by order of the Interstate Commerce Commission. In that year, Congress authorized the Commission to establish through routes 'provided no reasonable or satisfactory through route exists'.6 In 1910, Congress first empowered the Commission to establish alternate through routes but restricted this power by adding the forerunner of present Section 15(4) to prevent the Commission from establishing any through route requiring a carrier to short haul itself unless the existing route was unreasonably long compared to the proposed route.7
10
The Commission's effort to limit by construction the impact of the short-hauling restriction on its power to establish through routes was rejected by this Court in United States v. Missouri Pacific R. Co., 1929, 278 U.S. 269, 49 S.Ct. 133, 73 L.Ed. 322. Following this decision, the Commission asked Congress to delete completely the short-hauling restriction.8 In the Transportation Act of 1940, Congress refused to eliminate the restriction against short hauling, but adopted a compromise under which the restriction against short hauling was retained subject to a new exception applicable only where the Commission makes the special findings listed in the amended Section 15(4).9
11
Confronted with this consistent legislative refusal to eliminate the short-hauling restriction on its power to establish through routes, the Commission justifies its order on the ground that a 'through route' from Lenora to Omaha via the Burlington was already in existence. If the Commission has correctly applied the term 'through route' in this case, the Commission's restricted power to 'establish' through routes under Section 15(3) and (4) is not relevant to this case. The statutory term 'through route,' used throughout the Interstate Commerce Act,10 has been defined by this Court as follows:
12
'A 'through route' is an arrangement, express or implied, between connecting railroads for the continuous carriage of goods from the originating point on the line of one carrier to destination on the line of another. Through carriage implies a 'through rate.' This 'through rate' is not necessarily a 'joint rate.' It may be merely an aggregation of separate rates fixed independently by the several carriers forming the 'through route'; as where the 'through rate' is 'the sum of the locals' on the several connecting lines or is the sum of lower rates otherwise separately established by them for through transportation. Through Routes and Through Rates, 12 I.C.C. 163, 166.'11
13
The Commission decision cited by the Court was summarized as follows in the Commission's 21st Annual Report to Congress:
14
'A through route is a continuous line of railway formed by an arrangement, express or implied, between connecting carriers. * * * Existence of a through route is to be determined by the incidents and circumstances of the shipment, such as the billing, the transfer from one carrier to another, the collection and division of transportation charges, or the use of a proportional rate to or from junction points or basing points. These incidents named are not to be regarded as exclusive of others which may tend to establish a carrier's course of business with respect to through shipments.'12
15
In short, the test of the existence of a 'through route' is whether the participating carriers hold themselves out as offering through transportation service. Through carriage implies the existence of a through route whatever the form of the rates charged for the through service.
16
In this case there is no evidence that any through transportation servicehas ever been offered from Lenora to Omaha via the Burlington.13 The carriers' course of business negatives the existence of any such through sroute. The fact that appellant's line connects with the Burlington at Concordia does not aid the Commission in proving the existence of a through route since the power to establish through routes, under Section 15(3) and (4) also presupposes such physical connection. And the showing that appellant publishes a local rate from Lenora to Concordia and that the Burlington publishes a local rate from Concordia to Omaha proves only that each carrier complies with the statutory duty to publish rates for transportation service between points on its own lines.14
17
The only remaining evidence urged in support of the Commission's finding that a through route from Lenora to Omaha via the Burlington already exists is the showing that the Missouri Pacific and the Burlington offer through service from Lenora to points on the Burlington line short of Omaha.15 Under Section 1(4) of the Interstate Commerce Act,16 the Missouri Pacific is required to establish reasonable through routes. In conformity with that Section, the Missouri Pacific furnishes through service from Lenora to Omaha on its own lines via Atchison and, since its own lines do not serve points on the Burlington line short of Omaha, offers through service to such points in conjunction with the Burlington. Through service to points short of Omaha cannot be used as evidence of the existence of a through route of Omaha unless we are to hold that compliance with Section 1(4) causes the Missouri Pacific to lose its right to serve Omaha via its own lines, a right guaranteed by Section 15(4). We reject the Commission's argument that the existence of through routes from Lenora to points on the Burlington line short of Omaha proves the existence of a through route to Omaha via the Burlington as requiring an unwarranted distortion of the statutory pattern.
18
The United States, having joined in defense of the Commission's order in the District Court and on motion to affirm in this Court, has filed a memorandum conceding that the Commission erred in finding that through routes over the Burlington line already exist. The Commission continues to support its order, but the logical conclusion of the theory advanced by the Commission is that through routes exist between all points throughout the country wherever physical rail connections are available. If there is no through carriage over any combination of connecting carriers, the Commission under its present theory would never have to establish through routes under Section 15(3) and (4) but could divert traffic to any route between two points by ordering reduction of the sum of the local rates over that route. Acceptance of this argument would mean that Congress' insistence on protecting carriers from being required to short haul themselves could be evaded whenever the ommission chose to alter the form of its order.17 The Com mission, by using the form of order employed in this case, could also divert traffic from existing through routes to the lines of a weak carrier solely to assist that carrier to meet its financial needs, thereby evading completely the applicable prohibition of Section 15(4), before the Court in United States v. Great Northern Ry. Co., 343 U.S. 562, 72 S.Ct. 985. In short, acceptance of the Commission's argument would mean that the acts of Congress since 1906 granting the Commission only a carefully restricted power to establish through routes have been unnecessary surplusage.
19
We hold that the Commission's efforts to support its finding that a through route from Lenora to Omaha via the Burlington line already exists are inconsistent with the meaning of the term 'through route' as used in the Interstate Commerce Act.18 Since there is admittedly no evidence that the Missouri Pacific ever offered through transportation service over the route in question, the Commission's order is without evidentiary support under the accepted tests for determining the existence of a through route. Accordingly, the judgment of the District Court dismissing appellant's complaint must be reversed.
Reversed
1
49 U.S.C. § 1 et seq., 49 U.S.C.A. § 1 et seq.
2
See 49 U.S.C. §§ 1(5)(a), 3(1), 49 U.S.C.A. §§ 1(5), 3(1).
3
'In establishing any such through route the Commission shall not (except as provided in section 3, and except where one of the carriers as a water line) require any carrier by railroad, without its consent, to embrace in such route substantially less than the entire length of its railroad and of any intermediate railroad operated in conjunction and under a common management or control therewith, which lies between the termini of such proposed through route, (a) unless such inclusion of lines would make the through route unreasonably long as compared with another practicable through route which could otherwise be established, or (b) unless the Commission finds that the through route proposed to be established is needed in order to provide adequate, and more efficient or more economic, transportation: Provided, however, That in prescribing through routes the Commission shall, so far as is consistent with the public interest, and subject to the foregoing limitations in clauses (a) and (b), give reasonable preference to the carrier by railroad which originates the traffic. * * * ' 54 Stat. 911—912, 49 U.S.C. § 15(4), 49 U.S.C.A. § 15(4).
4
The short-hauling provisions are discussed and applied in Pennsylvania R. Co. v. United States, 1945, 323 U.S. 588, 65 S.Ct. 543, 544, 89 L.Ed. 478.
5
49 U.S.C. § 1(4), 49 U.S.C.A. § 1(4).
6
34 Stat. 584, 590. In I.C.C. v. Northern Pacific R. Co., 1910, 216 U.S. 538, 30 S.Ct. 417, 54 L.Ed. 608, this Court held that the restrictions on the Commission's power to establish through routes were judicially enforceable.
7
36 Stat. 539, 552. See S.Rep.No.355, 61st Cong., 2d Sess. 9—10 (1910).
8
The Commission first asked Congress to adopt the narrow construction of the short-hauling restriction rejected by this Court in United States v. Missouri Pacific R. Co., supra. Ann.Rep.I.C.C. (1929) 89; id. (1930) 97; id. (1931) 83—84, 121; id. (1932) 102. When the Federal Transportation Coordinator recommended that the short-hauling restriction be eliminated, S.Doc.No.152, 73d Cong., 2d Sess. 92—94 (1934), the Commission urged Congress to follow the Coordinator's recommendation. Ann.Rep.I.C.C. (1937) 106; id. (1938) 122.
In the 74th Congress, S.1636 and H.R. 5364 were introduced to enact the Commission's recommendatin, the Senate bill was reported favorably, S.Rep.No.1970, 74th Cong., 2d Sess. (1936), but no further action was taken. In the 75th Congress, similar bills were introduced, S.1261 and H.R.4341, the Senate bill was reported favorably, S.Rep.No.404, 75th Cong., 1st Sess. (1937), and was passed by the Senate, 81 Cong.Rec. 8603 (1937), but no further action was taken.
9
In the 76th Congress, bills to delete the short-hauling restriction were again introduced, S.1085 and H.R.3400. At the same time, the extensive revision of the Interstate Commerce Act which became the Transportation Act of 1940 was being considered. S.2009. A Senate Committee included in its over-all revision the 'through-routes provision long advocated by the Commission,' S.Rep.No.433, 76th Cong., 1st Sess. 6, 21—22 (1939), and the Transportation Act, so amended, was passed by the Senate. The Transportation Act as passed by the House did not provide for any change in Section 15(4). The present form of Section 15(4) emerged as Section 10(b) of the Transportation Act of 1940. 54 Stat. 898, 911—912. See Conference Reports: H.R.Rep.No.2016, 76th Cong., 3d Sess. 64—65 (1940); H.R.Rep.No.2832, 76th Cong., 3d Sess. 70—71 (1940).
10
49 U.S.C. §§ 1(4), 6(1), 15(3, 4, 8), 49 U.S.C.A. §§ 1(4), 6(1), 15(3, 4, 8); 49 U.S.C. (Supp.IV) § 5b(4), 49 U.S.C.A. § 5b(4).
11
St. Louis Southwestern R. Co. v. United States, 1917, 245 U.S. 136, 139, note 2, 38 S.Ct. 49, 50, 62 L.Ed. 199. See also Great Northern R. Co. v. United States, D.C.Del.1948, 81 F.Supp. 921, 924, affirmed, 1949, 336 U.S. 933, 69 S.Ct. 750, 93 L.Ed. 1093.
12
Ann.Rep.I.C.C. 75—76 (1907).
13
Compare Beaman Elevator Co. v. Chicago & N.W.R. Co., 155 I.C.C. 313 (1929), where the Commission held that proof of one shipment on a through bill of lading over a certain route was not sufficient to show the existence of a through route because that one shipment was not representative of the carriers' course of business. 49 U.S.C. § 6(1), 49 U.S.C.A. § 6(1).
14
49 U.S.C. sec. 6(1), 49 U.S.C.A. sec. 6(1).
15
The District Court indicated that such through service was offered on joint rates, but appellant states in this Court that such through service was offered on a through rate made up of a combination of the applicable local rates. We need not pause over this conflict since 'through routes' from Lenora to points on the Burlington short of Omaha are implied from the fact of through carriage, and are not dependent upon the form of the rates charged. See St. Louis Southwestern R. Co. v. United States, note 11, supra, and United States v. Great Northern Ry. Co., 343 U.S. -, 72 S.Ct. 985.
16
49 U.S.C. § 1(4), 49 U.S.C.A. § 1(4).
17
For example, in United States v. Missouri Pacific R. Co., supra, the Missouri Pacific furnished through traffic over its own lines from Memphis westward to Ft. Smith, Arkansas, and beyond. The Ft. Smith, Subiaco & R.I.R. Co., desirous of obtaining additional traffic, asked the Commission to establish a through route from Memphis to Ft. Smith via the connecting lines of the Rock Island Railroad, the Subiaco and a line of the Missouri Pacific. The Commission ordered the establishment of the through route with through rates at the same level as the rates then charged over the existing through route between Memphis and Ft. Smith. This Court held the order invalid as infringing upon the rights of the Missouri Pacific under the short-hauling provisions of Section 15(4). If the Commission is correct in this case, it could have accomplished the forbidden result merely by altering the form of its order—i.e., instead of ordering establishment of a new through route, the Commission could have assumed the existence of a through route from Memphis to Ft. Smith via the lines of the Rock Island, the Subiaco and the Missouri Pacific and accomplished the identical result by ordering reduction of the sum of the local rates over each portion of the route to the level of the rate over the existing through route.
18
Virginia R. Co. v. United States, 1926, 272 U.S. 658, 47 S.Ct. 222, 71 L.Ed. 463, is inapposite since through routes were there found to be in existence but commercially closed solely because of unreasonable and discriminatory rates charged by the Virginia over its portion of the route. In this case, there is no finding that the local rate charged by the Missouri Pacific from Lenora to Concordia is either unreasonable or discriminatory. Similarly, the decision in Atchison, T. & S.F.R. Co. v. United States, 1929, 279 U.S. 768, 49 S.Ct. 494, 73 L.Ed. 947, is not applicable to the facts of this case.
The Commission's argument that appellant's rates discriminate against Omaha in violation of Section 3(1) of the Act and thereby cause appellant to lose the protection of Section 15(4) is without substance because the Commission did not consider whether the rates charged by the Missouri Pacific over its own lines are discriminatory, much less make any finding to that effect.
| 78
|
343 U.S. 717
72 S.Ct. 950
96 L.Ed. 1249
TOMOYA KAWAKITAv.UNITED STATES.
No. 570.
Argued April 3, 1952.
Decided June 2, 1952.
Rehearing Denied Oct. 13, 1952.
See 73 S.Ct. 5.
[Syllabus from pages 717-719 intentionally omitted]
Messrs. Morris Lavine, A. L. Wiren, Los Angeles, Cal., for petitioner.
Mr. Oscar H Davis, Washington, D.C., for respondent.
Mr. Justice DOUGL AS delivered the opinion of the Court.
1
Petitioner, a national both of the United States and of Japan, was indicted for treason, the overt acts relating to his treatment of American prisoners of war. He was convicted of treason after a jury trial, see D.C., 96 F.Supp. 824 and the judgment of conviction was affirmed. 9 Cir., 190 F.2d 506. The case is here on certiorari. 342 U.S. 932, 72 S.Ct. 378.
2
First. The important question that lies at the threshold of the case relates to expatriation. Petitioner was born in this country in 1921 of Japanese parents who were citizens of Japan. He was thus a citizen of the United States by birth, Amendment XIV, § 1 and, by reason of Japanese law, a national of Japan. See Hirabayashi v. United States, 320 U.S. 81, 97, 63 S.Ct. 1375, 1384, 87 L.Ed. 1774.
3
In 1939 shortly before petitioner turned 18 years of age he went to Japan with his father to visit his grandfather. He traveled on a United States passport; and to obtain it he took the customary oath of allegiance. In 1940 he registered with an American consul in Japan as an American citizen. Petitioner remained in Japan, his father returning to this country. In March, 1941, he entered Meiji University and took a commercial course and military training. In April, 1941, he renewed his United States passport, once more taking the oath of allegiance to the United States. During this period he was registered as an alien with the Japanese police. When war was declared, petitioner was still a student at Meiji University. He became of age in 1942 and completed his schooling in 1943, at which time it was impossible for him to return to the United States. In 1943 he registered in the Koseki, a family census register.1 Petitioner did not join the Japanese Army nor serve as a soldier. Rather, he obtained employment as an interpreter with the Oeyama Nickel Industry Co., Ltd., where he worked until Japan's surrender. He was hired to interpret communications between the Japanese and the prisoners of war who were assigned to work at the mine and in the factory of this company. The treasonable acts for which he was convicted involved his conduct toward American prisoners of war.
4
In December, 1945, petitioner went to the United States consul at Yokohama and applied for registration as an American citizen. He stated under oath that he was a United States citizen and had not done various acts amounting to expatriation. He was issued a passport and returned to the United States in 1946. Shortly thereafter he was recognized by a former American prisoner of war, whereupon he was arrested, and indicted, and tried for treason.
5
Petitioner defended at his trial on the ground that he had renounced or abandoned his United States citizenship and was expatriated. Congress has provided by § 401 of the Nationality Act of 1940, 54 Stat. 1137, 1168, as amended, 8 U.S.C. § 801, 8 U.S.C.A. § 801, that a national of the United States may lose his nationality in certain prescribed ways. It provides in relevant part,
6
'A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by:
7
'(a) Obtaining naturalization in a foreign state * * *; or
8
'(b) Taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state; or
9
'(c) Entering, or serving in, the armed forces of a foreign state unless expressly authorized by the laws of the United States, if he has or acquires the nationality of such foreign state; or
10
'(d) Accepting, or performing the duties of, any office, post, or employment under the government of a foreign state or political subdivision thereof for which only nationals of such state are eligible; * * *.'
11
The court charged that if the jury found that petitioner had lost his Aerican citizenship prior to or during the period specified in the indictment, they must acquit him even if he did commit the overt acts charged in the indictment, since his duty of allegiance would have ceased with the termination of his American citizenship. The court further charged that if the jury should find beyond a reasonable doubt that during the period in question petitioner was an American citizen, he owed the United States the same duty of allegiance as any other citizen. The court also charged that even though the jury found that petitioner was an American citizen during the period in question, they must acquit him if at the time of the overt acts petitioner honestly believed he was no longer a citizen of the United States, for then he could not have committed the overt acts with treasonable intent. The special verdicts of the jury contain, with respect to each overt act as to which petitioner was found guilty, an affirmative answer to an interrogatory that he was at that time 'an American citizen owing allegiance to the United States, as charged in the indictment.'
12
Petitioner asks us to hold as a matter of law that he had expatriated himself by his acts and conduct beginning in 1943. He places special emphasis on the entry of his name in the Koseki. Prior to that time he had been registered by the police as an alien. There is evidence that after that time he was considered by Japanese authorities as a Japanese and that he took action which might give rise to the inference that he had elected the Japanese nationality: he took a copy of the Koseki to the police station and had his name removed as an alien; he changed his registration at the University from American to Japanese and his address from California to Japan; he used the Koseki entry to get a job at the Oeyama camp; he went to China on a Japanese passport, see United States ex rel. Scimeca v. Husband, 2 Cir., 6 F.2d 957, 958; he accepted labor draft papers from the Japanese government; he faced the east each morning and paid his respects to the Emperor.
13
The difficulty with petitioner's position is that the implications from the acts, which he admittedly performed, are ambiguous. He had a dual nationality, a status long recognized in the law.2 Perkins v. Elg, 307 U.S. 325, 344—349, 59 S.Ct. 884, 894 896, 83 L.Ed. 1320. The concept of dual citizenship recognizes that a person may have and exercise rights of nationality in two countries and be subject to the responsibilities of both. The mere fact that he asserts the rights of one citizenship does not without more mean that he renounces the other. In this setting petitioner's registration in the Koseki might reasonably be taken to mean no more than an assertion of some of the rights which his dual citizenship bestowed on him. The deposition of the Attorney General of Japan states that the entry of a person's name in the Koseki is taken to mean that one has Japanese nationality. But since petitioner already had Japanese nationality, he obviously did not acquire it by the act of registration. The Attorney General of Japan further deposed that all Japanese nationals, whether or not born abroad, are duty bound to Japanese allegiance and that registering in the Koseki is 'not necessarily a formal declaration of allegiance but merely a reaffirmation of an allegiance to Japan which already exists.' From this it would appear that the registration may have been nothing more than the disclosure of a fact theretofore not made public.
14
Conceivably it might have greater consequences. In other settings it might be the equivalent of 'naturalization' within the meaning of § 401(a) of the Act or the making of 'an affirmation or other formal declaration of allegiance' to Japan within the meaning of § 401(b). Certainly it was relevant to the issue of expatriation. But we cannot say as a matter of law that it was a renunciation of petitioner's American citizenship. What followed might reasonably be construed to mean no more than recognition of the Japanese citizenship which petitioner had acquired on birth nationality that was publicly disclosed for the first time in Japan by his registration in the Koseki. Cf. 3 Hackworth, Digest of International Law (1942), p. 373. The changing of his registration at the police station and at the University, so as to conform those records to the public record of his Japanese nationality, might reasonably mean no more than announcing the fact of his Japanese nationality to the interested authorities.
15
As we have said, dual citizenship presupposes rights of citizenship in each country. It could not exist if the assertion of rights or the assumption of liabilities of one were deemed inconsistent with the maintenance of the other. For example, when one has a dual citizenship, it is not necessarily inconsistent with his citizenship in one nation to use a passport proclaiming his citizenship in the other. See 3 Hackworth, supra, p. 353. Hence the use by petitioner of a Japanese passport on his trip to China, his use of the Koseki entry to obtain work at the Oeyama camp, the bowing to the Emperor, and his acceptance of labor draft papers from the Japanese government might reasonably mean no more than acceptance of some of the incidents of Japanese citizenship made possible by his dual citizenship.
16
Those acts, to be sure, were colored by various other acts and statements of petitioner. He testified for example that he felt no loyalty to the United States from about March, 1943, to late 1945. There was evidence that he boasted that Japan was winning and would win the war, that he taunted American prisoners of war with General MacArthur's departure from the Philippines, that he expressed his hatred toward things American and toward the prisoners as Americans. That was in 1943 and 1944. This attitude continued into 1945, although in May or June, 1945, shortly before Japan's surrender, he was saying he did not care 'which way the war goes because I am going back to the States anyway.'
17
On December 31, 1945, he applied for registration as an American citizen, and in that connection he made an affidavit in which he stated that he had een 'temporarily residing' in Japan since August 10, 1939; tha t he came to Japan to study Japanese; that he possessed dual nationality from birth but that his name was not entered in the census register until March 8, 1943; and that he had 'never been naturalized, taken an oath of allegiance, or voted as a foreign citizen or subject, or in any way held myself out as such.'
18
The United States foreign service officer concluded that petitioner had overcome the presumption of expatriation. He reported, 'In 1943 his possession of Japanese nationality was made a matter of record by the entry of his name into his uncle's Family Census Register. He states that this action was taken under severe pressure by the Japanese police and by his uncle, on whom he was financially dependent after his supply of funds from the U.S. was cut off; this office has reason to believe this statement.' These representations led to the issuance of an American passport on which he returned to the United States in 1946.
19
If petitioner were to be believed in December, 1945, he never once renounced his American citizenship. If what petitioner now says were his thoughts, attitudes, and motives in 1943 and 1944 and in part of 1945, he did intend to renounce his American citizenship. If the latter version were believed by the jury, the signing of the family register, and the changing of his registration at the police station and at the University would assume different significance; those acts might then readily suggest the making of a declaration of allegiance to Japan within the meaning of § 401(b). If, on the other hand, petitioner were to be believed when in 1945 he stated he had not done acts by which he renounced his American citizenship, then the Koseki incident and the changes in his police and University registration could reasonably be taken as amounting to no more than a public declaration of an established and pre-existing fact, viz. his Japanese nationality. We think, in other words, that the question whether petitioner had renounced his American citizenship was on this record peculiarly for the jury to determine. The charge was that the jury must be satisfied beyond a reasonable doubt that during the period specified in the indictment, petitioner was an American citizen. We cannot say there was insufficient evidence for that finding.
20
Petitioner concedes he did not enter the armed services of Japan within the meaning of § 401(c) of the Act but claims that during his tour of duty at the Oeyama camp he was 'serving in' the Japanese armed services within the statutory meaning of those words. In this connection he also argues that his work in the Oeyama camp was the performance of the duties of an 'office, post, or employment under the government' of Japan 'for which only nationals of such state are eligible' within the meaning of § 401(d) of the Act.
21
The Oeyama Nickel Industry Co., Ltd., was a private company, organized for profit. It was engaged in producing metals used for war under contracts with the Japanese government. In 1944 it was designated by the Japanese government as a munitions corporation and under Japanese law civilian employees were not allowed to change or quit their employment without the consent of the government. The company's mine and factory were manned in part by prisoners of war. They lived in a camp controlled by the Japanese army. Though petitioner took orders from the military, he was not a soldier in the armed services; he wore insignia on his uniform distinguishing him as nonmilitary personnel; he had no duties to perform in relation to the prisoners, except those of an interpreter. His employment was as an interpreter for the Oeyama Nickel Industry Co., Ltd., a private company. The regulation of the company by the Japanese government, the freezing of its labor force, the assignment to it of prisoners of war under military command were incidents of a war economy. But we find no indication that the Oeyama Company as nationalized or its properties seized and operated by the g overnment. The evidence indicates that it was a part of a regimented industry; but it was an organization operating for private profit under private management. We cannot say that petitioner's status as an employee of a private company was changed by that regimentation of the industry.
22
It would require a broad and loose construction of 'office, post, or employment under the government of a foreign state' as those words are used in § 401(d) to hold that petitioner had sacrificed his American citizenship by accepting or performing the duties of interpreter. We are thinking not only of this case but of other cases to which § 401(d) is applicable. We are reluctant to resolve the ambiguity contained in § 401(d) so as to provide treacherous ground for the loss of the rights of citizenship by the Nisei. As the Court said in Perkins v. Elg, supra, 307 U.S. at page 337, 59 S.Ct. at page 891, 'Rights of citizenship are not to be destroyed by an ambiguity.' It would be harsh indeed to hold that a Nisei, marooned in Japan when World War II broke out, would be expatriated merely by working for a private company whose business was supervised and whose labor supply was controlled by the Japanese government in time of war. That would give § 401(d) a broad, pervasive sweep. Section 401(d) not only makes acceptance of 'any office, post, or employment under the government of a foreign state' the basis of expatriation; it also makes 'performing the duties' of any such office, post, or employment a ground for expatriation. One who was drafted for such service would be included, as well as one who volunteered. In time of war that would bring most employees of private companies within the danger zone in view of the hold which a war economy places on industry and the supervision and control which it asserts. We therefore incline to a construction of the words 'under the government of a foreign state' to mean the relationship that public employees have with their government or with the bureaus or corporations which are government owned and controlled. Support for that narrower meaning is found in the legislative history.3
23
Section 4024 creates a presumption5 that a national in Kawakita's category who remains six months or longer within a foreign state of which he or either of his parents shall have been a national shall be presumed to have expatriated himself under § 401(c) or (d). Section 402 does not enlarge § 401(c) or (d); it creates a rebuttable presumption of expatriation; and when it is shown that the citizen did no act which brought him under § 401(c) or (d), the presumption is overcome. On that showing the person never loses his American nationality. See Dos Reis ex rel. Camara v. Nicolls, 1 Cir., 161 F.2d 860, 868. In other words, once it was shown that petitioner was not expatriated under § 401(c) or (d), the force of § 402 was spent.
24
Section 408 provides, 'The loss of nationality under this Act shall result solely from the performance by a national of the acts of fulfillment of the conditions specified in this Act.' The District Court therefore charged the jury that the only methods of expatriation are those contained in § 401. Petitioner claims that charge was error. He argues that § 408 is applicable only to the loss of nationality 'under this Act' and that there are other methods of losing it. He refers to R.S. § 1999, 8 U.S.C. § 800, 8 U.S.C.A. § 800, which survived the Nationality Act of 1940 and is not part of it, and which proclaims the right of expatriation as 'a natural and inherent right of all people'.6 We do not undertake to resolve the question for the reason that it is not squarely presented. On this issue of expatriation, petitioner tenders no question of fact which was inadmissible under § 401. Petitioner merely says that 'by his conduct' he had 'expatriated himself from United States citizenship.' But he has failed to show that that issue is narrower than or different from the issue presented on this record under § 401(b)—the declaration of allegiance to Japan. As we have indicated, the major factual problem on the issue of expatriation revolved around the entry of petitioner's name in the Koseki. All of the other conduct referred to, including the paying of respects to the Emperor and the expressions of hostility to the United States, were relevant and admissible on that issue. If it could not in the eyes of the jury make the signing of the Koseki and the changes in the registration that followed that event tantamount to renunciation under § 401(b), it hardly could do so standing alone. Hence, if there was error in the charge, it was harmless.
25
That conclusion is reinforced by another aspect of the case. Petitioner testified that he believed when he signed the Koseki that he lost his American citizenship. He testified that during the period charged in the indictment he believed that he was no longer an American citizen. The District Court charged that if the jury found (1) defendant had committed any overt act charged in the indictment and (2) he was an American citizen, yet they should not convict if they further found that at the time 'the defendant honestly believed that he was no longer a citizen of the United States' since in that event he could not have committed the act with treasonable intent. Under this charge the belief of petitioner that he had renounced his American citizenship was sufficient to acquit if the jury believed him. His belief could not have been made more relevant to the issue of guilt if it had been admitted as proof of expatriation separate and apart from the other grounds specified in § 401 of the Act. Hence even if we assume, arguendo, that the court was wrong in charging that § 408 made the grounds specified in § 401 exclusive, the error was harmless.
26
Second. Petitioner contends that a person who has a dual nationality can be guilty of treason only to the country where he resides, not to the other country which claims him as a national. More specifically, he maintains that while petitioner resided in Japan he owed his paramount allegiance to that country and was indeed, in the eyes of our law, an alien enemy.
27
The argument in its broadest reach is that treason against the United States cannot be committed abroad or in enemy territory, at least by an American with a dual nationality residing in the other country which claims him as a national. The definition of treason, however, contained in the Constitution contains no territorial limitation. 'Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. * * *' Art. III, § 3. A substitute proposal containing some territorial limitations was rejected by the Constitutional Convention. See 2 Farrand, The Records of the Federal Convention, pp. 347—348. The Act of April 30, 1790, 1 Stat. 112, which was passed by the first Congress defining the crime of treason likewise contained no territorial limitation; and that legislation is contained in substantially the same form in the present statute. 18 U.S.C. (Supp. IV) § 2381, 18 U.S.C.A. 2381.7 We must therefore reject the suggestion that an American citizen living beyond the territoril limits of the United States may not commit treason against them. See Chandler v. United States, 1 Cir., 171 F.2d 921, 929—930; Burgman v. United States, 88 U.S.App.D.C. 184, 185, 188 F.2d 637, 640.
28
On e who has a dual nationality will be subject to claims from both nations, claims which at times may be competing or conflicting. The nature of those claims has recently been stated as follows:
29
'A person with dual nationality may be subjected to taxes by both states of which he is a national. He is not entitled to protection by one of the two states of which he is a national while in the territorial jurisdiction of the other. Either state not at war with the other may insist on military service when the person is present within its territory. In time of war if he supports neither belligerent, both may be aggrieved. If he supports one belligerent, the other may be aggrieved. One state may be suspicious of his loyalty to it and subject him to the disabilities of an enemy alien, including sequestration of his property, while the other holds his conduct treasonable.' Orfield, The Legal Effects of Dual Nationality, 17 Geo.Wash.L.Rev. 427, 429.
30
Dual nationality, however, is the unavoidable consequence of the conflicting laws of different countries. See 3 Hackworth, supra, pp. 352 et seq. One who becomes a citizen of this country by reason of birth retains it, even though by the law of another country he is also a citizen of it. He can under certain circumstances be deprived of his American citizenship through the operation of a treaty or an act of Congress; he can also lose it by voluntary action. See Perkins v. Elg, supra, 307 U.S. at page 329, 59 S.Ct. at page 887. But American citizenship, until lost, carries obligations of allegiance as well as privileges and benefits. For one who has a dual status the obligations of American citizenship may at times be difficult to discharge. An American who has a dual nationality may find himself in a foreign country when it wages war on us. The very fact that he must make a livelihood there may indirectly help the enemy nation. In these days of total war manpower becomes critical and everyone who can be placed in a productive position increases the strength of the enemy to wage war. Of course, a person caught in that predicament can resolve the conflict of duty by openly electing one nationality or the other and becoming either an alien enemy of the country where he resides or a national of it alone. Yet, so far as the existing law of this country is concerned, he need not make that choice but can continue his dual citizenship. It has been stated in an administrative ruling of the State Department that a person with a dual citizenship who lives abroad in the other country claiming him as a national owes an allegiance to it which is paramount to the allegiance he owes the United States.8 That is a far cry from a ruling that a citizen in that position owes no allegiance to the United States. Of course, an American citizen who is also a Japanese national living in Japan has obligations to Japan necessitated by his residence there. There might conceivably be cases where the mere nonperformance of the acts complained of would be a breach of Japanese law. He may have employment which requires him to perform certain acts. The compulsion may come from the fact that he is drafted for the job or that his conduct is demanded by the laws of Japan. He may be coerced by his employer or supervisor or by the force of circumstances to do things which he has no desire or heart to do. That was one of petitioner's defenses in this case. Such acts—if done voluntarily and willfully might be treasonable. But if done under the compulsion of the job or the law or some other influence, those acts would not rise to the gravity of that offense. The trial judge recognized the distinction in his charge when he instructed the jury to acquit petitioner if he did not do the acts willingly or voluntarily 'but so acted only because performance of the duties of his employment required him to do so or because of other coercion or compulsion.' In short, petitioner was held accountabe by the jury only for performing acts of hostility toward thi § country which he was not required by Japan to perform.
31
If he can retain that freedom and still remain an American citizen, there is not even a minimum of allegiance which he owes to the United States while he resides in the enemy country. That conclusion is hostile to the concept of citizenship as we know it, and it must be rejected. One who wants that freedom can get it by renouncing his American citizenship. He cannot turn it into a fair-weather citizenship, retaining it for possible contingent benefits but meanwhile playing the part of the traitor. An American citizen owes allegiance to the United States wherever he may reside.
32
Circumstances may compel one who has a dual nationality to do acts which otherwise would not be compatible with the obligations of American citizenship. An American with a dual nationality who is charged with playing the role of the traitor may defend by showing that force or coercion compelled such conduct. The jury rejected that version of the facts which petitioner tendered. He is therefore forced to maintain that, being a national and a resident of Japan, he owed no allegiance to the United States even though he was an American citizen. That proposition we reject.
33
Third. Article III, § 3 of the Constitution provides, 'Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.'
34
So far as material here, the crime thus consists of two elements—adhering to the enemy; and giving him aid and comfort. See Cramer v. United States, 325 U.S. 1, 29, 65 S.Ct. 918, 930, 89 L.Ed. 1441. One may think disloyal thoughts and have his heart on the side of the enemy. Yet if he commits no act giving aid and comfort to the enemy, he is not guilty of treason. He may on the other hand commit acts which do give aid and comfort to the enemy and yet not be guilty of treason, as for example where he acts impulsively with no intent to betray. Two witnesses are required not to the disloyal and treacherous intention but to the same overt act. See Cramer v. United States, supra, 325 U.S. at pages 30, 31, 65 S.Ct. at pages 932, 933.
35
The jury found petitioner guilty of eight overt acts.9 One overt act alone, properly proved, would be sufficient to sustain the conviction, all other elements of the crime of treason being established. Since the jury returned special verdicts and findings as to each of the eight overt acts, we could not upset the judgment of conviction, unless all eight were insufficient. See Haupt v. United States, 330 U.S. 631, 641, 67 S.Ct. 874, 879, 91 L.Ed. 1145. We conclude, however, that each of the eight overt acts was properly proved.
36
Each of these related to his treatment of American prisoners of war at the Oeyama camp. These prisoners were mostly from Bataan and were in weakened condition on their arrival. All were below normal weight; many of them were suffering from disease; most of them were unfit for work. They were assigned to work either in the factory or at the mine of the Oeyama Company. They were under the supervision of the Japanese army. Petitioner was a civilian interpreter, as we have said. There was evidence that he had no authority and no duties, as respects the prisoners, except as an interpreter. Yet the record shows a long, persistent, and continuous course of conduct directed against the American prisoners and going beyond any conceivable duty of an interpreter.
37
After the American prisoners arrived, the Japanese autorities raised the quota of ore which they were expected to pr oduce each day. The quota had been between 120 and 165 carloads a day; now it was increased to 200. A part of petitioner's conduct was swearing at the prisoners, beating them, threatening them, and punishing them for not working faster and harder, for failing to fill their quotas, for resting, and for slowing down.
38
There were two overt acts in this category. Overt act (a) as alleged in the indictment and developed at the trial was that in May, 1945, petitioner kicked a prisoner named Toland who was ill, because he slowed down in lifting pieces of ore rocks from the tracks at the factory to keep the tracks clear. Toland had suffered a dizzy spell and slowed down. Petitioner told him to get to work and thereupon kicked him, causing him to fall flat and to cut his face and hand. Another prisoner wanted to pick Toland up; but petitioner would not let him. Overt act (j) as alleged in the indictment and developed at the trial was that in May, 1945, petitioner struck a prisoner named Armellino, who was weak and emaciated, in order to make him carry more lead. Armellino had been carrying only one bucket of lead. Petitioner thereupon struck him, causing him to fall. When he got up, petitioner forced him to carry two buckets, pushing him along.
39
Each of these acts was aimed at getting more work out of the prisoners—work that produced munitions of war for the enemy, or so the jury might have concluded. The increased efforts charged in overt acts (a) and (j) were small; the contribution to the war effort of the enemy certainly was minor, not crucial. Harboring the spy in Haupt v. United States, supra, was also insignificant in the total war effort of Germany during the recent war. Yet it was a treasonable act. It is the nature of the act that is important. The act may be unnecessary to a successful completion of the enemy's project; it may be an abortive attempt; it may in the sum total of the enemy's effort be a casual and unimportant step. But if it gives aid and comfort to the enemy at the immediate moment of its performance, it qualifies as an overt act within the constitutional standard of treason. As Chief Justice Marshall said in Ex parte Bollman, 4 Cranch 75, 126, 2 L.Ed. 554, 'If war be actually levied, * * * all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.' These two overt acts, if designed to speed up Japan's war production, plainly gave aid and comfort to the enemy in the constitutional sense.
40
The other overt acts were acts of cruelty to American prisoners of war.
41
Overt act (b) as alleged in the indictment and developed at the trial was that one Grant, an American prisoner, had been seen by a Japanese sentry coming out of the Red Cross storeroom with a package of cigarettes. He was thereupon thrown into a cesspool by a Japanese sergeant, ordered out, and knocked back repeatedly. While Grant was in the cesspool, petitioner hit him over the head with a wooden pole or sword, told him to squat down, and tried to force him to sit in the water. When Grant was taken from the pool, he was blue, his teeth were chattering, and he could not straighten up.
42
Overt act (c) as alleged in the indictment and developed at the trial was that in December, 1944, petitioner and Japanese guards lined up about 30 American prisoners and, as punishment for making articles of clothing out of blankets, struck them and forced them to strike each other. Petitioner hit prisoners who, he thought, did not hit each other hard enough.
43
Overt act (d) as alleged in the indictment and developed at the trial was that petitioner imposed cruelty on O'Connor, an American prisoner, who was sick and had stolen Red Cross supplies. He was knocked into the cesspool by Japanese soldiers and then repeatedly hit and thrown back into the pool by them and by petitioner, with the result that O'Cnnor temporarily lost his reason.
44
Overt act (g) as alleged in the indictment and developed at the trial was that in July or August, 1945, a Japanese sergeant compelled a work detail of American prisoners, who had returned early, to run around a quadrangle. Petitioner forced two of the Americans, who were unable to run fast because of illness, to run the course an additional four and six times respectively. Petitioner threw pebbles and sod at them to make them run faster.
45
Overt act (i) as alleged in the indictment and developed at the trial was that in December, 1944, petitioner ordered one Carter, an American prisoner of war, to carry a heavy log up an ice-covered slope at the mine. When Carter slipped, fell, and was injured, petitioner although he knew Carter was badly hurt and needed attention delayed his removal back to camp for approximately five hours.
46
Overt act (k) as alleged in the indictment and developed at the trial was that in the spring or summer of 1945 petitioner participated in the inhuman punishment of one Shaffer, an American prisoner of war. Shaffer was forced to kneel on bamboo sticks on a platform with a bamboo stick inside the joints of his knees, and to keep his arms above his head holding a bucket of water and later a log. When Shaffer became tired and bent his elbows, petitioner would strike him. When Shaffer leaned over and spilled some water, petitioner would take the bucket, throw the water on Shaffer, and have the bucket refilled. Then Shaffer was required to hold up a log. It fell on him, causing a gash. After the wound was treated, petitioner placed bamboo sticks on the ground and once more made Shaffer kneel on them and go through the same performance.
47
As we have said, petitioner was not required by his employment to inflict punishment on the prisoners. His duties regarding the prisoners related solely to the role of interpreter. His acts of cruelty toward the prisoners were over and beyond the call of duty of his job, or so the jury might have found. We cannot say as a matter of law that petitioner did these acts under compulsion. He seeks, however, to find protection under Japanese municipal law. It is difficult to see how that argument helps petitioner. The source of the law of treason is the Constitution. If an American citizen is a traitor by the constitutional definition, he gains no immunity because the same acts may have been unlawful under the law of the country where the acts were performed. Treason is a separate offense; treason can be committed by one who scrupulously observes the laws of other nations; and his acts may be nonetheless treasonable though the same conduct amounts to a different crime. It would take a long chapter to relate the numerous acts that supplement the crime of treason and build different and lesser crimes out of the same or related acts. See Cramer v. United States, supra, 325 U.S. at page 45, 65 S.Ct. at page 939. But no matter the reach of the legislative power in defining other crimes, the constitutional requirements for treason remain the same. The crime of treason can be taken out of the Constitution by the processes of amendment; but there is no other way to modify or alter it.
48
The jury found that each of the six overt acts of cruelty actually gave aid and comfort to the enemy. We agree. These were not acts innocent and commonplace in appearance and gaining treasonable significance only by reference to other evidence, as in Cramer v. United States, supra. They were acts which showed more than sympathy with the enemy, more than a lack of zeal in the American cause, more than a breaking of allegiance to the United States. They showed conduct which actually promoted the cause of the enemy. They were acts which tended to strengthen the enemy and advance its interests. These acts in their setting would help make all the prisoners fearful, docile, and subservient. Because of these punishments the prisoners would be less likely to be troublesome; they would need fewerguards; they would require less watching. These acts would ten d to give the enemy the 'heart and courage to go on with the war.' That was the test laid down by Lord Chief Justice Treby in Trial of Captain Vaughan, 13 How.St.Tr. 485, 533. It is a sufficient measure of the overt act required by the Constitution. Cramer v. United States, supra, 325 U.S. at pages 28, 29, 34, 65 S.Ct. at pages 932, 934. All of the overt acts tended to strengthen Japan's war efforts; all of them encouraged the enemy and advanced its interests.
49
Petitioner contends that the overt acts were not sufficiently proved by two witnesses. Each witness who testified to an overt act was, however, an eye-witness of the commission of that act. They were present and saw or heard that to which they testified. In some instances there was a variance as to details. Thus overt act (b) was testified to by thirteen witnesses. They did not all agree as to the exact date when the overt act occurred, whether in April, May, or June, 1945. But they all agreed that it did take place, that Grant was the victim, and that it happened between 3 and 6 o'clock in the afternoon; and most of them agreed that petitioner struck Grant. The Court of Appeals concluded, and we agree, that the disagreement among the witnesses was not on what took place but on collateral details. 'While two witnesses must testify to the same act, it is not required that their testimony be identical.' Haupt v. United States, supra, 330 U.S. at page 640, 67 S.Ct. at page 878. There is no doubt that as respects each of the eight overt acts the witnesses were all talking about the same incident and were describing the same conduct on petitioner's part.
50
Fourth. Petitioner challenges the sufficiency of the evidence to show the second element in the crime of treason—adhering to the enemy. The two-witness requirement does not extend to this element. Cramer v. United States, supra, 325 U.S. at page 31, 65 S.Ct. at page 933. Intent to betray must be inferred from conduct. It may be inferred from the overt acts themselves, Cramer v. United States, supra, 325 U.S. at page 31, 65 S.Ct. at page 933, from the defendant's own statements of his attitudes toward the war effort, Haupt v. United States, supra, 330 U.S. at page 642, 67 S.Ct. at page 879, and from his own professions of loyalty to Japan.
51
Evidence of what petitioner said during this period concerning the war effort and his professions of loyalty, if believed by the jury, leaves little doubt of his traitorous intent. 'It looks like MacArthur took a run-out powder on you boys'; 'The Japanese were a little superior to your American soldiers'; 'You Americans don't have no chance. We will win the war.' 'Well, you guys needn't be interested in when the war will be over because you won't go back; you will stay here and work. I will go back to the States because I am an American citizen'; 'We will kill all you prisoners right here anyway, whether you win the war or lose it. You will never get to go back to the States'; 'I will be glad when all of the Americans is dead, and then I can go home and live happy.' These are some of the statements petitioner made aligning himself with the Japanese cause. There was also evidence that he said that the prisoners would never go back to their wives and their families, that Japan would win the war and that he would return to the United States as an important man, that Japan would win if it took 100 years, that the Japanese were superior to the Americans and if the American Army had Japanese officers, they could whip the world, that there were more American boys who would be available to do the work, if the present prisoners were too weak to work. And on the day the work at the camp ended after Japan surrendered he commented, 'You American bastards will be well fed' or 'you will be getting fat from now on.'
52
There was evidence that in May or June, 1945, petitioner said, 'It don't make a damn to me which way the war goes because I am going back tothe States anyway.' At the trial he said he felt no loyalty to the United States during the period from March 1943 to December 1945, and that he intended to do everything he could to help Japan. He also testified that the first loyalty he felt to the United States, following the entry of his name in the Koseki, was when he applied for registration as an American citizen in December, 1945, and once more took the oath of allegiance. Yet we have already seen that in connection with that application he conceded his dual nationality and the continuance of his American citizenship during his entire stay in Japan.
53
If the versions of petitioner's words and conduct at the Oeyama camp, testified to by the various witnesses, were believed, the traitorous intent would be shown by overwhelming evidence. Petitioner indeed conceded at the trial that he felt no loyalty to the United States at this time and had thrown his lot in with Japan. Yet at the end of the war he had taken the oath of allegiance to the United States, claiming he had been a United States citizen all along. The issue of intent to betray, like the citizenship issue, was plainly one for the jury to decide. We would have to reject all the evidence adverse to petitioner and accept as the truth his protestations when the shadow of the hangman's noose was on him in order to save him from the finding that he did have the intent to betray. That finding of the jury was based on its conclusion that what he did was done willingly and voluntarily and not because the duty of his office or any coercion compelled him to do it. The finding that he had an uncoerced and voluntary purpose was amply supported by the evidence. Therefore the second element of the crime of treason was firmly established.
54
Other alleged errors are pressed upon us. But they are either insubstantial or so adequately disposed of by the Court of Appeals that we give them no notice, with one exception and that relates to the severity of the sentence. At the time of these offenses Congress had provided that one who is guilty of treason 'shall suffer death; or, at the discretion of the court, shall be imprisoned not less than five years and fined not less than $10,000, * * * and every person so convicted of treason shall, moreover, be incapable of holding any office under the United States.'10 The trial judge imposed the death sentence. The argument is that that sentence was so severe as to be arbitrary. It was, however, within the statutory limits. Whether a sentence may be so severe and the offense so trivial that an appellate court should set it aside is a question we need not reach. The flagrant and persistent acts of petitioner gave the trial judge such a leeway in reaching a decision on the sentence that we would not be warranted in interfering. Cf. Blockburger v. United States, 284 U.S. 299, 305, 52 S.Ct. 180, 182, 76 L.Ed. 306.
55
Affirmed.
56
Mr. Justice FRANKFURTER, not having heard the argument, owing to illness, took no part in the disposition of the case.
57
Mr. Justice CLARK took no part in the consideration or decision of the case.
58
Mr. Chief Justice VINSON, with whom Mr. Justice BLACK and Mr. Justice BURTON join, dissenting.
59
The threshold question in this case is whether petitioner renounced his United States citizenship and became expatriated by reason of acts committed in Japan during the War. Prior to 1943, petitioner was regarded by Japanese authorities as an enemy alien. In March, 1943, petitioner gave official notice of his allegiance to Japan by having his name registered in the family Koseki. Thereafter, petitioner had his name removed from police records as an enemy alien, secured employment subject to military control at a munitions plant, traveled to China on a Japanese passport, and prayed daily for the Emperor's health and a Japanese victory. These facts and petitioner's heinous treatment of American prisoners of war, recited in the opinion of the Court, convince us that petitioner, for over two years, was consistently demonstrating his allegiance to Japan, not the United States. As a matter of law, he expatriated himself as well as that can be done.
60
Petitioner's statements that he was still a citizen of the United States—made in order to obtain a United States passport after Japan had lost the War—cannot restore citizenship renounced during the War. Because we conclude, on this record, that petitioner's whole course of conduct was inconsistent with retention of United States citizenship, we would reverse petitioner's conviction of treason against the United States.
1
See Blakemore, Recovery of Japanese Nationality as Cause for Expatriation in American Law, 43 Am.J.Int'l L. 441, 449.
2
For discussions of the subject of dual nationality, see Talbot v. Jansen, 3 Dall. 133, 164—165, 169, 1 L.Ed. 540; Inglis v. Trustees of The Sailor's Snug Harbour, 3 Pet. 99, 126, 157, 161, 7 L.Ed. 617; Shanks v. Dupont, 3 Pet. 242, 247, 249, 7 L.Ed. 666; Perkins v. Elg, 307 U.S. 325, 329, 339, 344—345, 59 S.Ct. 884, 83 L.Ed. 1320; Hirabayashi v. United States, 320 U.S. 81, 97 98, 63 S.Ct. 1375, 1384, 87 L.Ed. 1774; Savorgnan v. United States, 338 U.S. 491, 500, 70 S.Ct. 292, 297, 94 L.Ed. 287; Unitd States ex rel. Scimeca v. Husband, 2 Cir., 6 F.2d 957, 958; Dos Reis ex rel. Camara v. Nicolls, 1 Cir., 161 F.2d 860; Attorney General of U.S. v. Ricketts, 9 Cir., 165 F.2d 193; Uyeno v. Acheson, D.C., 96 F.Supp. 510, 514—515; Tomasicchio v. Acheson, D.C., 98 F.Supp. 166; Kondo v. Acheson, D.C., 98 F.Supp. 884, 886 887; Hamamoto v. Acheson, D.C., 98 F.Supp. 904, 905; Boissonnas v. Acheson, D.C., 101 F.Supp. 138, 147, 151—152; Di Girolamo v. Acheson, D.C., 101 F.Supp. 380, 382; Coumas v. Superior Court in and for San Joaquin County, 31 Cal.2d 682, 192 P.2d 449; Doyle v. Ries, 208 Minn. 321, 293 N.W. 614; Ludlam v. Ludlam, 26 N.Y. 356, 376—377; Lynch v. Clarke, 1 Sandf.Ch., N.Y. 583, 659, 677—679; State ex rel. Phelps v. Jackson, 79 Vt. 504, 520, 65 A. 657, 661, 8 L.R.A.,N.S., 1245; Borchard, Diplomatic Protection of Citizens Abroad, 575—591; Flournoy, Dual Nationality and Election, 30 Yale L.J. 545, 693; Hackworth, Digest of International Law, Vol. III, pp, 352—377; Hyde, International Law (2d ed.) Vol. 2, pp. 1131 1143; Moore, International Law Digest, Vol. III, pp. 518—551; Nielsen, Some Vexatious Questions Relating to Nationality, 20 Col.L.Rev. 840; Oppenheim, International Law (7th ed., Lauterpacht), Vol. I, pp. 606—610; Orfield, The Legal Effects of Dual Nationality, 17 Geo.Wash.L.Rev. 427; Van Dyne, Citizenship of the United States, 24, 34.
3
The explanatory comments on the draft code of the Nationality Laws transmitted with the message of the President on June 13, 1938, stated the following as respects § 401(c) and (d):
'With reference to subsections (c) and (d) attention is called to the following statement in an opinion of Attorney General Williams, dated August 20, 1873 (14 Op.Atty.Gen. 295, 297):
"My opinion * * * is that, in addition to domicile and intent to remain, such expressions or acts as amount to a renunciation of United States citizenship and a willingness to submit to or adopt the obligations of the country in which the person resides, such as accepting public employment, engaging in military services, etc., may be treated by this Government as expatriation, without actual naturalization. Naturalization is without doubt the highest, but not the only evidence of expatriation." (Italics added.) Codification of the Nationality Laws of the United States, 76th Cong., 1st Sess., House Committee Print, p. 67.
Mr. Flournoy, speaking for the State Department at the hearings (see Hearings on H.R. 6127, H.R. 9980, 76th Cong., 1st Sess., pp. 131—132), described the provision that became § 401(d) in the following way:
'It seems to me the object of that is fairly clear. A foreign state has some position in its government which can be held only by its citizens and an American accepts such a position and serves the foreign state and loses his American nationality. That is intended particularly for cases of persons of dual nationality, and there are not a great many of those cases. There are not many thousands of them * * *. This is intended particularly for those cases of dual nationality. Say an American is born here and he goes to and is living in Mexico and he takes a position in the Mexican Government, that is regarded as equivlent to a choice of his citizenship and he loses his American nationality.' (Italics added.)
4
Section 402 reads as follows:
'A national of the United States who was born in the United States or who was born in any place outside of the jurisdiction of the United States of a parent who was born in the United States, shall be presumed to have expatriated himself under subsection (c) or (d) of section 401, when he shall remain for six months or longer within any foreign state of which he or either of his parents shall have been a national according to the laws of such foreign state, or within any place under control of such foreign state, and such presumption shall exist until overcome whether or not the individual has returned to the United States. Such presumption may be overcome on the presentation of satisfactory evidence to a diplomatic or consular officer of the United States, or to an immigration officer of the United States, under such rules and regulations as the Department of State and the Department of Justice jointly prescribe. However, no such presumption shall arise with respect to any officer or employee of the United States while serving abroad as such officer or employee, nor to any accompanying member of his family.' 8 U.S.C.A. § 802.
5
Section 402 was adopted 'upon the special recommendation of the War Department with a view to checking the activities of persons regarded as prospective 'fifth Columnists." 86 Cong.Rec. 11948.
6
R.S. § 1999, 8 U.S.C. § 800, 8 U.S.C.A. § 800 provides:
' Whereas the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness; and whereas in the recognition of this principle this Government has freely received emigrants from all nations, and invested them with the rights of citizenship; and whereas it is claimed that such American citizens, with their descendants, are subjects of foreign states, owing allegiance to the governments thereof; and whereas it is necessary to the maintenance of public peace that this claim of foreign allegiance should be promptly and finally disavowed: Therefore any declaration, instruction, opinion, order, or decision of any officer of the United States which denies, restricts, impairs, or questions the right of expatriation, is declared inconsistent with the fundamental principles of the Republic.'
7
'Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined not less than $10,000; and shall be ncapable of holding any office under the United States.'
8
Abstract of Passport Laws and Precedents, Passport Division Office Instructions, Code No. 1.6, May 19, 1941.
9
The form of interrogatory which the jury answered affirmatively to each of the eight overt acts is printed in United States v. Kawakita, D.C., 96 F.Supp. 824, 851—852.
10
18 U.S.C. (1946 ed.) § 2. For the present version see note 7, supra.
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343 U.S. 579
72 S.Ct. 863
96 L.Ed. 1153
YOUNGSTOWN SHEET & TUBE CO. et al.v.SAWYER. SAWYER v. YOUNGSTOWN SHEET & TUBE CO. et al.
Nos. 744, 745.
Argued May 12 and May 13, 1952.
Decided June 2, 1952.
[Syllabus from pages 579-581 intentionally omitted]
Mr. John W. Davis, New York City, for Youngstown Sheet & Tube Co. et al.
Mr. Solicitor General Philip B. Perlman, Washington, D.C., for Sawyer, Secretary of Commerce.
Messrs. Clifford D. O'Brien, Chicago, Ill., and Harold C. Heiss, Cleveland, Ohio, for Brotherhood of Locomotive Firemen and Enginemen, et al., as amici curiae, by special leave of Court.
Mr. Arthur J. Goldberg, Washington, D.C., for United Steelworkers of America, CIO, as amicus curiae, by special leave of Court.
Mr. Justice BLACK delivered the opinion of the Court.
1
We are asked to decide whether the President was acting within his constitutional power when he issued an order directing the Secretary of Commerce to take possession of and operate most of the Nation's steel mills. The mill owners argue that the President's order amounts to lawmaking, a legislative function which the Constitution has expressly confided to the Congress and not to the President. The Government's position is that the order was made on findings of the President that his action was necessary to avert a national catastrophe which would inevitably result from a stoppage of steel production, and that in meeting this grave emergency the President was acting within the aggregate of his constitutional powers as the Nation's Chief Executive and the Commander in Chief of the Armed Forces of the United States. The issue emerges here from the following series of events:
2
In the latter part of 1951, a dispute arose between the steel companies and their employees over terms and conditions that should be included in new collective bargaining agreements. Long-continued conferences failed to resolve the dispute. On December 18, 1951, the employees' representative, United Steelworkers of America, C.I.O., gave notice of an intention to strike when the existing bargaining agreements expired on December 31. The Federal Mediation and Conciliation Service then intervened in an effort to get labor and management to agree. This failing, the President on December 22, 1951, referred the dispute to the Federal Wage Stabilization Board1 to investigate and make recommendations for fair and equitable terms of settlement. This Board's report resulted in no settlement. On April 4, 1952, the Union gave notice of a nation-wide strike called to begin at 12:01 a.m. April 9. The indispensability of steel as a component of substantially all weapons and other war materials led the President to believe that the proposed work stoppage would immediately jeopardize our national defense and that governmental seizure of the steel mills was necessary in order to assure the continued availability of steel. Reciting these considerations for his action, the President, a few hours before the strike was to begin, issued Executive Order 10340, a copy of which is attached as an appendix, post, 72 S.Ct. 868. The order directed the Secretary of Commerce to take possession of most of the steel mills and keep them running. The Secretary immediately issued his own possessory orders, calling upon the presidents of the various seized companies to serve as operationg managers for the United States. They were directed to carry on their activities in accordance with regulations and directions of the Secretary. The next morning the President sent a message to Congress reporting his action. Cong.Rec., April 9, 1952, p. 3962. Twelve days later he sent a second message. Cong.Rec., April 21, 1952, p. 4192. Congress has taken no action.
3
Obeying the Secretary's orders under protest, the companies brought proceedings against him in the District Court. Their complaints charged that the seizure was not authorized by an act of Congress or by any constitutional provisions. The District Court was asked to declare the orders of the President and the Secretary invalid and to issue preliminary and permanent injunctions restraining their enforcement. Opposing the motion for preliminary injunction, the United States asserted that a strike disrupting steel production for even a brief period would so endanger the well-being and safety of the Nation that the President had 'inherent power' to do what he had done—power 'supported by the Constitution, by historical precedent, and by court decisions.' The Government also contended that in any event no preliminary injunction should be issued because the companies had made no showing that their available legal remedies were inadequate or that their injuries from seizure would be irreparable. Holding against the Government on all points, the District Court on April 30 issued a preliminary injunction restraining the Secretary from 'continuing the seizure and possession of the plant * * * and from acting under the purported authority of Executive Order No. 10340.' 103 F.Supp. 569. On the same day the Court of Appeals stayed the District Court's injunction. 197 F.2d 582. Deeming it best that the issues raised be promptly decided by this Court, we granted certiorari on May 3 and set the cause for argument on May 12. 343 U.S. 937, 72 S.Ct. 775.
4
Two crucial issues have developed: First. Should final determination of the constitutional validity of the President's order be made in this case which has proceeded no further than the preliminary injunction stage? Second. If so, is the seizure order within the constitutional power of the President?
I.
5
It is urged that there were nonconstitutional grounds upon which the District Court could have denied the preliminary injunction and thus have followed the customary judicial practice of declining to reach and decide constitutional questions until compelled to do so. On this basis it is argued that equity's extraordinary injunctive relief should have been denied because (a) seizure of the companies' properties did not inflict irreparable damages, and (b) there were available legal remedies adequate to afford compensation for any possible damages which they might suffer. While separately argued by the Government, these two contentions are here closely related, if not identical. Arguments as to both rest in large part on the Government's claim that should the seizure ultimately be held unlawful, the companies could recover full compensation in the Court of Claims for the unlawful taking. Prior cases in this Court have cast doubt on the right to recover in the Court of Claims on account of properties unlawfully taken by government officials for public use as these properties were alleged to have been. See e.g., Hooe v. United States, 218 U.S. 322, 335—336, 31 S.Ct. 85, 89, 54 L.Ed. 1055; United States v. North American Transportation & Trading Co., 253 U.S. 330, 333, 40 S.Ct. 518, 519, 64 L.Ed. 935. But see Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 701—702, 69 S.Ct. 1457, 1467, 93 L.Ed. 1628. Moreover, seizure and governmental operation of these going businesses were bound to result in many present and future damages of such nature as to be difficult, if not incapable, of measurement. Viewing the case this way, and in the light of the facts presented, the District Court saw no reason for delaying decision of the constitutional validity of the orders. We agree with the District Court and can see no reason why that question was not ripe for determination on the record presented. We shall therefore consider and determine that question now.
II.
6
The President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself. There is no statute that expressly authorizes the President to take possession of property as he did here. Nor is there any act of Congress to which our attention has been directed from which such a power can fairly be implied. Indeed, we do not understand the Government to rely on statutory authorization for this seizure. There are two statutes which do authorize the President to take both personal and real property under certain conditions.2 However, the Government admits that these conditions were not met and that the President's order was not rooted in either of the statutes. The Government refers to the seizure provisions of one of these statutes (§ 201(b) of the Defense Production Act) as 'much too cumbersome, involved, and time-consuming for the crisis which was at hand.'
7
Moreover, the use of the seizure technique to solve labor disputes in order to prevent work stoppages was not only unauthorized by any congressional enactment; prior to this controversy, Congress had refused to adopt that method of settling labor disputes. When the Taft-Hartley Act was under consideration in 1947, Congress rejected an amendment which would have authorized such governmental seizures in cases of emergency.3 Apparently it was thought that the technique of seizure, like that of compulsory arbitration, would interfere with the process of collective bargaining.4 Consequently, the plan Congress adopted in that Act did not provide for seizure under any circumstances. Instead, the plan sought to bring about settlements by use of the customary devices of mediation, conciliation, investigation by boards of inquiry, and public reports. In some instances temporary injunctions were authorized to provide cooling-off periods. All this failing, unions were left free to strike after a secret vote by employees as to whether they wished to accept their employers' final settlement offer.5
8
It is clear that if the President had authority to issue the order he did, it must be found in some provisions of the Constitution. And it is not claimed that express constitutional language grants this power to the President. The contention is that presidential power should be implied from the aggregate of his powers under the Constitution. Particular reliance is placed on provisions in Article II which say that 'the executive Power shall be vested in a President * * *'; that 'he shall take Care that the Laws be faithfully executed'; and that he 'shall be Commander in Chief of the Army and Navy of the United States.'
9
The order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though 'theater of war' be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation's lawmakers, not for its military authorities.
10
Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he tninks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The first section of the first article says that 'All legislative Powers herein granted shall be vested in a Congress of the United States * * *.' After granting many powers to the Congress, Article I goes on to provide that Congress may 'make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.'
11
The President's order does not direct that a congressional policy be executed in a manner prescribed by Congress—it directs that a presidential policy be executed in a manner prescribed by the President. The preamble of the order itself, like that of many statutes, sets out reasons why the President believes certain policies should be adopted, proclaims these policies as rules of conduct to be followed, and again, like a statute, authorizes a government official to promulgate additional rules and regulations consistent with the policy proclaimed and needed to carry that policy into execution. The power of Congress to adopt such public policies as those proclaimed by the order is beyond question. It can authorize the taking of private property for public use. It can makes laws regulating the relationships between employers and employees, prescribing rules designed to settle labor disputes, and fixing wages and working conditions in certain fields of our economy. The Constitution did not subject this law-making power of Congress to presidential or military supervision or control.
12
It is said that other Presidents without congressional authority have taken possession of private business enterprises in order to settle labor disputes. But even if this be true, Congress has not thereby lost its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested by the Constitution 'in the Government of the United States, or in any Department or Officer thereof.'
13
The Founders of this Nation entrusted the law making power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand.
14
The judgment of the District Court is affirmed.
15
Affirmed.
16
Mr. Justice FRANKFURTER.
17
Although the considerations relevant to the legal enforcement of the principle of separation of powers seem to me more complicated and flexible than any appear from what Mr. Justice BLACK has written, I join his opinion because I thoroughly agree with the application of the principle to the circumstances of this case. Even though such differences in attitude toward this principle may be merely differences in emphasis and nuance, they can hardly be reflected by a single opinion for the Court. Individual expression of views in reaching a common result is therefore important.
18
APPENDIX.
Executive Order
19
Directing the Secretary of Commerce to Take Possession of and Operate the Plants and Facilities of Certain Steel Companies
20
Whereas on December 16, 1950, I proclaimed the existence of a national emergency which requires that the military, naval, air, and civilian defenses of this country be strengthened as speedily as possible to the end that we may be able to repel any and all threats against our national security and to fulfill our responsibilities in the efforts being made throughout the United Nations and otherwise to bring about a lasting peace; and
21
Whereas American fighting men and fighting men of other nations of the United Nations are now engaged in deadly combat with the forces of aggression in Korea, and forces of the United States are stationed elsewhere overseas for the purpose of participating in the defense of the Atlantic Community against aggression; and
22
Whereas the weapons and other materials needed by our armed forces and by those joined with us in the defense of the free world are produced to a great extent in this country, and steel is an indispensable component of substantially all of such weapons and materials; and
23
Whereas steel is likewise indispensable to the carrying out of programs of the Atomic Energy Commission of vital importance to our defense efforts; and
24
Whereas a continuing and uninterrupted supply of steel is also indispensable to the maintenance of the economy of the United States, upon which our military strength depends; and
25
Whereas a controversy has arisen between certain companies in the United States producing and fabricating steel and the elements thereof and certain of their workers represented by the United Steelworkers of America, CIO, regarding terms and conditions of employment; and
26
Whereas the controversy has not been settled through the processes of collective bargaining or through the efforts of the Government, including those of the Wage Stabilization Board, to which the controversy was referred on December 22, 1951, pursuant to Executive Order No. 10233, and a strike has been called for 12:01 A.M., April 9, 1952; and
27
Whereas a work stoppage would immediately jeopardize and imperil our national defense and the defense of those joined with us in resisting aggression, and would add to the continuing danger of our soldiers, sailors, and airmen engaged in combat in the field; and
28
Whereas is order to assure the continued availability of steel and steel products during the existing emergency, it is necessary that the United States take possession of and operate the plants, facilities, and other property of the said companies as hereinafter provided:
29
Now, therefore, by virtue of the authority vested in me by the Constitution and laws of the United States, and as President of the United States and Commander in Chief of the armed forces of the United States, it is hereby ordered as follows:
30
1. The Secretary of Commerce is hereby authorized and directed to take possession of all or such of the plants, facilities, and other property of the companies named in the list attached hereto (List of specific Steel Companies and Plants omitted), or any part thereof, as he may deem necessary in the interests of national defense; and to operate or to arrange for the operation thereof and to do all things necessary for, or incidental to, such operation.
31
2. In carrying out this order the Secretary of Commerce may act through or with the aid of such public or private instrumentalities or persons as he may designate; and all Federal agencies shall cooperate with the Secretary of Commerce to the fullest extent possible in carrying out the purposes of this order.
32
3. The Secretary of Commerce shall determine and prescribe terms and conditions of employment under which the plants, facilities, and other properties possession of which is taken pursuant to this order shall be operated. The Secretary of Commerce shall recognize the rights of workers to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining, adjustment of grievances, or other mutual aid or protection, provided that such activities do not interfere with the operation of such plants, facilities, and other properties.
33
4. Except so far as the Secretary of Commerce shall otherwise provide from time to time, the managements of the plants, facilities, and other properties possession of which is taken pursuant to this order shall continue their functions, including the collection and disbursement of funds in the usual and ordinary course of business in the names of their respective companies and by means of any instrumentalities used by such companies.
34
5. Except so far as the Secretary of Commerce may otherwise direct, existing rights and obligations of such companies shall remain in full force and effect, and there may be made, in due course, payments of dividends on stock, and of principal, interest, sinking funds, and all other distributions upon bonds, debentures, and other obligations, and expenditures may be made for other ordinary corporate or business purposes.
35
6. Whenever in the judgment of the Secretary of Commerce further possession and operation by him of any plant, facility, or other property is no longer necessary or expedient in the interest of national defense, and the Secretary has reason to believe that effective future operation is assured, he shall return the possession and operation of such plant, facility, or other property to the company in possession and control thereof at the time possession was taken under this order.
36
7. The Secretary of Commerce is authorized to prescribe and issue such regulations and orders not inconsistent herewith as he may deem necessary or desirable for carrying out the purposes of this order; and he may delegate and authorize subdelegation of such of his functions under this order as he may been desirable.
37
Harry S. Truman.
38
The White House, April 8, 1952.
39
Mr. Justice FRANKFURTER, concurring.
40
Before the cares of the White House were his own, President Harding is reported to have said that government after all is a very simple thing. He must have said that, if he said it, as a fleeting inhabitant of fairyland. The opposite is the truth. A constitutional democracy like ours is perhaps the most difficult of man's social arrangements to manage successfully. Our scheme of society is more dependent than any other form of government on knowledge and wisdom and self-descipline for the achievement of its aims. For our democracy implies the reign of reason on the most extensive scale. The Founders of this Nation were not imbued with the modern cynicism that the only thing that history teaches is that it teaches nothing. They acted on the conviction that the experience of man sheds a good deal of light on his nature. It sheds a good deal of light not merely on the need for effective power, if a society is to be at once cohesive and civilized, but also on the need for limitations on the power of governors over the governed.
41
To that end they rested the structure of our central government on the system of checks and balances. For them the doctrine of separation of powers was not mere theory; it was a felt necessity. Not so long ago it was fashionable to find our system of checks and balances obstructive to effective government. It was easy to ridicule that system as outmoded—too easy. The experience through which the world has passed in our own day has made vivid the realization that the Framers of our Constitution were not inexperienced doctrinaires. These long-headed statesmen had no illusion that our people enjoyed biological or psychological or sociological immunities from the hazards of concentrated power. It is absurd to see a dictator in a representative product of the sturdy democratic traditions of the Mississippi Valley. The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority.
42
The Framers, however, did not make the judiciary the overseer of our government. They were familiar with the revisory functions entrusted to judges in a few of the States and refused to lodge such powers in this Court. Judicial power can be exercised only as to matters that were the traditional concern of the courts at Westminster, and only if they arise in ways that to the expert feel of lawyers constitute 'Cases' or 'Controversies.' Even as to questions that were the staple of judicial business, it is not for the courts to pass upon them unless they are indispensably involved in a conventional litigation. And then, only to the extent that they are so involved. Rigorous adherence to the narrow scope of the judicial function is especially demanded in controversies that arouse appeals to the Constitution. The attitude with which this Court must approach its duty when confronted with such issues is precisely the opposite of that normally manifested by the general public. So-called constitutional questions seem to exercise a mesmeric influence over the popular mind. This eagerness to settle—preferably forever a specific problem on the basis of the broadest possible constitutional pronouncements may not unfairly be called one of our minor national traits. An English observer of our scene has acutely described it: 'At the first sound of a new argument over the United States Constitution and its interpretation the hearts of Americans leap with a fearful joy. The blood stirs powerfully in their veins and a new lustre brightens their eyes. Like King Harry's men before Harfleur, they stand like greyhounds in the slips, straining upon the start.' The Economist, May 10, 1952, p. 370.
43
The path of duty for this Court, it bears repetition, lies in the opposite direction. Due regard for the implications of the distribution of powers in our Constitution and for the nature of the judicial process as the ultimate authority in interpreting the Constitution, has not only confined the Court within the narrow domain of appropriate adjudication. It has also led to 'a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision.' Brandeis, J., in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341, 346, 56 S.Ct. 466, 480, 482, 80 L.Ed. 688. A basic rule is the duty of the Court not to pass on a constitutional issue at all, however narrowly it may be confined, if the case may, as a matter of intellectual honesty, be decided without even considering delicate problems of power under the Constitution. It ought to be, but apparently is not a matter of common understanding that clashes between different branches of the government should be avoided if a legal ground of less explosive potentialities is properly available. Constitutional adjudications are apt by exposing differences to exacerbate them.
44
So here our first inquiry must be not into the powers of the President, but into the powers of a District Judge to issue a temporary injunction in the circumstances of this case. Familiar as that remedy is, it remains an extraordinary remedy. To start with a consideration of the relation between the President's powers and those of Congress—a most delicate matter that has occupied the thoughts of statesmen and judges since the Nation was founded and will continue to occupy their thoughts as long as our democracy lasts—is to start at the wrong end. A plaintiff is not entitled to an injunction if money damages would fairly compensate him for any wrong he may have suffered. The same considerations by which the Steelworkers, in their brief amicus, demonstrate, from the seizure here in controversy, consequences that cannot be translated into dollars and cents, preclude a holding that only compensable damage for the plaintiffs is involved. Again, a court of equity ought not to issue an injunction, even though a plaintiff otherwise makes out a case for it, if the plaintiff's right to an injunction is overborne by a commanding public interest against it. One need not resort to a large epigrammatic generalization that the evils of industrial dislocation are to be preferred to allowing illegality to go unchecked. To deny inquiry into the President's power in a case like this, because of the damage to the public interest to be feared from upsetting its exercise by him, would in effect always preclude inquiry into challenged power, which presumably only avowed great public interest brings into action. And so, with the utmost unwillingness, with every desire to avoid judicial inquiry into the powers and duties of the other two branches of the government, I cannot escape consideration of the legality of Executive Order No. 10340.
45
The pole-star for constitutional adjudications is John Marshall's greatest judicial utterance that 'it is a constitution we are expounding.' McCulloch v. Maryland, 4 Wheat. 316, 407, 4 L.Ed. 579. That requires both a spacious view in applying an instrument of government 'made for an underfined and expanding future,' Hurtado v. People of State of California, 110 U.S. 516, 530, 4 S.Ct. 111, 118, 28 L.Ed. 232, and as narrow a delimitation of the constitutional issues as the circumstances permit. Not the least characteristic of great statesmanship which the Framers manifested was the extent to which they did not attempt to bind the future. It is no less incumbent upon this Court to avoid putting fetters upon the future by needless pronouncements today.
46
Marshall's admonition that 'it is a constitution we are expounding' is especially relevant when the Court is required to give legal sanctions to an underlying principle of the Constitution—that of separation of powers. 'The great ordinances of the Constitution do not establish and divide fields of black and white.' Holmes, J., dissenting in Springer v. Government of Philippine Islands, 277 U.S. 189, 209, 48 S.Ct. 480, 485, 72 L.Ed. 845.
47
The issue before us can be met, and therefore should be, without attempting to define the President's powers comprehensively. I shall not attempt to delineate what belongs to him by virtue of his office beyond the power even of Congress to contract; what authority belongs to him until Congress acts; what kind of problems may be dealt with either by the Congress or by the President or by both, cf. La Abra Silver Mine Co. v. United States, 175 U.S. 423, 20 S.Ct. 168, 44 L.Ed. 223; what power must be exercised by the Congress and cannot be delegated to the President. It is as unprofitable to lump together in an undiscriminating hotch-potch past presidential actions claimed to be derived from occupancy of the office, as it is to conjure up hypothetical future cases. The judiciary may, as this case proves, have to intervene in determining where authority lies as between the democratic forces in our scheme of government. But in doing so we should be wary and humble. Such is the teaching of this Court's role in the history of the country.
48
It is in this mood and with this perspective that the issue before the Court must be approached. We must therefore put to one side consideration of what powers the President would have had if there had been no legislation whatever bearing on the authority asserted by the seizure, or if the seizure had been only for a short, explicitly temporary period, to be terminated automatically unless Congressional approval were given. These and other questions, like or unlike, are not now here. I would exceed my authority were I to say anything about them.
49
The question before the Court comes in this setting. Congress has frequently—at least 16 times since 1916— specifically provided for executive seizure of production, transportation, communications, or storage facilities. In every case it has qualified this grant of power with limitations and safeguards. This body of enactments—summarized in tabular form in Appendix I—demonstrates that Congress deemed seizure so drastic a power as to require that it be carefully circumscribed whenever the President was vested with this extraordinary authority. The power to seize has uniformly been given only for a limited period or for a defined emergency, or has been repealed after a short period. Its exercise has been restricted to particular circumstances such as 'time of war or when was is imminent,' the needs of 'public safety' or of 'national security or defense,' or 'urgent and impending need.' The period of governmental operation has been limited, as, for instance, to 'sixty days after the restoration of productive efficiency.' Seizure statutes usually make executive action dependent on detailed conditions: for example, (a) failure or refusal of the owner of a plant to meet governmental supply needs or (b) failure of voluntary negotiations with the owner for the use of a plant necessary for great public ends. Congress often has specified the particular executive agency which should seize or operate the plants or whose judgment would appropriately test the need for seizure. Congress also has not left to implication that just compensation be paid: it has usually legislated in detail regarding enforcement of this litigation-breeding general requirement.
50
Congress in 1947 was again called upon to consider whether governmental seizure should be used to avoid serious industrial shutdowns. Congress decided against conferring such power generally and in advance, without special congressional enactment to meet each particular need. Under the urgency of telephone and coal strikes in the winter of 1946, Congress addressed itself to the problems raised by 'national emergency' strikes and lockouts.1 The termination of wartime seizure powers on December 31, 1946, brought these matters to the attention of Congress with vivid impact. A proposal that the President be given powers to seize plants to avert a shutdown where the 'health or safety' of the nation was endangered, was thoroughly canvassed by Congress and rejected. No room for doubt remains that the proponents as well as the opponents of the bill which became the Labor Management Relations Act of 1947 clearly understood that as a result of that legislation the only recourse for preventing a shutdown in any basic industry, after failure of mediation, was Congress.2 Authorization for seizure as an available remedy for potential dangers was unequivocally put aside. The Senate Labor Committee, through its Chairman, explicitly reported to the Senate that a general grant of seizure powers had been considered and rejected in favor of reliance on ad hoc legislation, as a particular emergency might call for it.3 An amendment presented in the House providing that where necessary 'to preserve and protect the public health and security' the President might seize any industry in which there is an impending curtailment of production, was voted down after debate, by a vote of more than three to one.4
51
In adopting the provisions which it did, by the Labor Management Relations Act of 1947, for dealing with a 'national emergency' arising out of a breakdown in peaceful industrial relations, Congress was very familiar with Government seizure as a protective measure. On a balance of considerations Congress chose not to lodge this power in the President. It chose not to make available in advance a remedy to which both industry and labor were fiercely hostile.5 In deciding that authority to seize should be given to the President only after full consideration of the particular situation should show such legislation to be necessary, Congress presumably acted on experience with similar industrial conflicts in the past. It evidently assumed that industrial shutdowns in basic industries are not instances of spontaneous generation, and that danger warnings are sufficiently plain before the event to give ample opportunity to start the legislative process into action.
52
In any event, nothing can be plainer than that Congress made a conscious choice of policy in a field full of perplexity and peculiarly within legislative responsibility for choice. In formulating legislation for dealing with industrial conflicts, Congress could not more clearly and emphatically have withheld authority than it did in 1947. Perhaps as much so as is true of any piece of modern legislation, Congress acted with full consciousness of what it was doing and in the light of much recent history. Previous seizure legislation had subjected the powers granted to the President to restrictions of varying degrees of stringency. Instead of giving him even limited powers, Congress in 1947 deemed it wise to require the President, upon failure of attempts to reach a voluntary settlement, to report to Congress if he deemed the power of seizure a needed shot for his locker. The President could not ignore the specific limitations of prior seizure statutes. No more could he act in disregard of the limitation put upon seizure by the 1947 Act.
53
It cannot be contended that the President would have had power to issue this order had Congress explicitly negated such authority in formal legislation. Congress has expressed its will to withhold this power from the President as though it had said so in so many words. The authoritatively expressed purpose of Congress to disallow such power to the President and to require him, when in his mind the occasion arose for such a seizure, to put the matter to Congress and ask for specific authority from it, could not be more decisive if it had been written into §§ 206—210 of the Labor Management Relations Act of 1947. Only the other day we treated the Congressional gloss upon those sections as part of the Act. Amalgamated Ass'n of Street Electric Railway & Motor Coach Employees v. Wisconsin Employment Relations Board, 340 U.S. 383, 395— 396, 71 S.CT. 359, 365, 366, 95 L.ED. 364. GRAFTING upon the words a purpOSE of Congress thus unequivocally expressed is the regular legislative mode for defining the scope of an Act of Congress. It would be not merely infelicitous draftsmanship but almost offensive gaucherie to write such a restriction upon the President's power in terms into a statute rather than to have it authoritatively expounded, as it was, by controlling legislative history.
54
By the Labor Management Relations Act of 1947, Congress said to the President, 'You may not seize. Please report to us and ask for seizure power if you think it is needed in a specific situation.' This of course calls for a report on the unsuccessful efforts to reach a voluntary settlement, as a basis for discharge by Congress of its responsibility—which it has unquivocally reserved—to fashion further remedies than it provided.6 But it is now claimed that the President has seizure power by virtue of the Defense Production Act of 1950 and its Amendments.7 And the claim is based on the occurrence of new events—Korea and the need for stabilization, etc.—although it was well known that seizure power was withheld by the Act of 1947 and although the President, whose specific requests for other authority were in the main granted by Congress, never suggested that in view of the new events he needed the power of seizure which Congress in its judgment had decided to withhold from him. The utmost that the Korean conflict may imply is that it may have been desirable to have given the President further authority, a freer hand in these matters. Absence of authority in the President to deal with a crisis does not imply want of power in the Government. Conversely the fact that power exists in the Government does not vest it in the President. The need for new legislation does not enact it. Nor does it repeal or amend existing law.
55
No authority that has since been given to the President can by any fair process of statutory construction be deemed to withdraw the restriction or change the will of Congress as expressed by a body of enactments, culminating in the Labor Management Relations Act of 1947. Title V of the Defense Production Act, entitled 'Settlement of Labor Disputes,' pronounced the will of Congress 'that there be effective procedures for the settlement of labor disputes affecting national defense,' and that 'primary reliance' be placed 'upon the parties to any labor dispute to make every effort through negotiation and collective bargaining and the full use of mediation and conciliation facilities to effect a settlement in the national interest.'8 Section 502 authorized the President to hold voluntary conferences of labor, industry, and public and government representatives and to 'take such action as may be agreed upon in any such conference and appropriate to carry out the provisions of this title,' provided that no action was taken inconsistent with the Labor Management Relations Act of 1947.9 This provision10 was said by the Senate Committee on Banking and Currency to contemplate a board similar to the War Labor Board of World War II and 'a national labor-management conference such as was held during World War II, when a no-strike, no-lock-out pledge was obtained.'11 Section 502 was believed necessary in addition to existing means for settling disputes voluntarily because the Federal Mediation and Conciliation Service could not enter a labor dispute unless requested by one party.12 Similar explanations of Title V were given in the Conference Report and by Senator Ives, a member of the Senate Committee to whom Chairman Maybank during the debates on the Senate floor referred questions relating to Title V.13 Senator Ives said:
56
'It should be remembered in this connection that during the period of the present emergency it is expected that the Congress will not adjourn, but at most, will recess only for very limited periods of time. If, therefore, any serious work stoppage should arise or even be threatened, in spite of the terms of the Labor-Management Relations Act of 1947, the Congress would be readily available to pass such legislation as might be needed to meet the difficulty.'14
57
The Defense Production Act affords no ground for the suggestion that the 1947 denial to the President of seizure powers has been impliedly repealed, and its legislative history contradicts such a suggestion. Although the proponents of that Act recognized that the President would have a choice of alternative methods of seeking a mediated settlement, they also recognized that Congress alone retained the ultimate coercive power to meet the threat of 'any serious work stoppage.'
58
That conclusion is not changed by what occurred after the passage of the 1950 Act. Seven and a half months later, on April 21, 1951, the President by Executive Order 10233 gave the reconstituted Wage Stabilization Board authority to investigate labor disputes either (1) submitted voluntarily by the parties, or (2) referred to it by the President.15 The Board can make only 'recommendations to the parties as to fair and equitable terms of settlement' unless the parties agree to be bound by the Board's recommendation. About a month thereafter Sub-Committees of both the House and Senate Labor Committees began hearings on the newly assigned disputes functions of the Board.16 Amendments to deny the Board these functions were voted down in the House,17 and Congress extended the Defense Production Act without changing Title V in relevant part.18 The legislative history of the Defense Production Act and its Amendments in 1951 cannot possibly be vouched for more than Congressional awareness and tacit approval that the President had charged the Wage Stabilization Board with authority to seek voluntary settlement of labor disputes. The most favorable interpretation of the statements in the committee reports can make them mean no more than 'We are glad to have all the machinery possible for the voluntary settlement of labor disputes.' In considering the Defense Production Act Amendments, Congress was never asked to approve—and there is not the slightest indication that the responsible committees ever had in mind seizure of plants to coerce settlement of disputes. We are not even confronted by an inconsistency between the authority conferred on the Wage Board, as formulated by the Executive Order, and the denial of Presidential seizure powers under the 1947 legislation. The Board has been given merely mediatory powers similar to those of agencies created by the Taft-Hartley Act and elsewhere, with no other sanctions for acceptance of its recommendations than are offered by its own moral authority and the pressure of public opinion. The Defense Production Act and the disputes-mediating agencies created subsequent to it still leave for solution elsewhere the question what action can be taken when attempts at voluntary settlement fail. To draw implied approval of seizure power from this history is to make something out of nothing.
59
It is one thing to draw an intention of Congress from general language and to say that Congress would have explicitly written what is inferred, where Congress has not addressed itself to a specific situation. It is quite impossible, however, when Congress did specifically address itself to a problem, as Congress did to that of seizure, to find secreted in the interstices of legislation the very grant of power which Congress consciously withheld. To find authority so explicitly withheld is not merely to disregard in a particular instance the clear will of Congress. It is to disrespect the whole legislative process and the constitutional division of authority between President and Congress.
60
The legislative history here canvassed is relevant to yet another of the issues before us, namely, the Government's argument that overriding public interest prevents the issuance of the injunction despite the illegality of the seizure. I cannot accept that contention. 'Balancing the equities' when considering whether an injunction should issue, is lawyers' jargon for choosing between conflicting public interests. When Congress itself has struck the balance, has defined the weight to be given the competing interests, a court of equity is not justified in ignoring that pronouncement under the guise of exercising equitable discretion.
61
Apart from his vast share of responsibility for the conduct of our foreign relations, the embracing function of the President is that 'he shall take Care that the Laws be faithfully executed * * *.' Art. II, § 3. The nature of that authority has for me been comprehensively indicated by Mr. Justice Holmes. 'The duty of the President to see that the laws be executed is a duty that does not go beyond the laws or require him to achieve more than Congress sees fit to leave within his power.' Myers v. United States, 272 U.S. 52, 177, 47 S.Ct. 21, 85, 71 L.Ed. 160. The powers of the President are not as particularized as are those of Congress. But unenumerated powers do not mean undefined powers. The separation of powers built into our Constitution gives essential content to undefined provisions in the frame of our government.
62
To be sure, the content of the three authorities of government is not to be derived from an abstract analysis. The areas are partly interacting, not wholly disjointed. The Constitution is a framework for government. Therefore the way the framework has consistently operated fairly establishes that it has operated according to its true nature. Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them. It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them. In short, a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on 'executive Power' vested in the President by § 1 of Art. II.
63
Such was the case of United States v. Midwest Oil Co., 236 U.S. 459, 35 S.Ct. 309, 59 L.Ed. 673. The contrast between the circumstances of that case and this one helps to draw a clear line between authority not explicitly conferred yet authorized to be exercised by the President and the denial of such authority. In both instances it was the concern of Congress under express constitutional grant to make rules and regulations for the problems with which the President dealt. In the one case he was dealing with the protection of property belonging to the United States; in the other with the enforcement of the Commerce Clause and with raising and supporting armies and maintaining the Navy. In the Midwest Oil case lands which Congress had opened for entry were, over a period of 80 years and in 252 instances, and by Presidents learned and unlearned in the law, temporarily withdrawn from entry so as to enable Congress to deal with such withdrawals. No remotely comparable practice can be vouched for executive seizure of property at a time when this country was not at war, in the only constitutional way in which it can be at war. It would pursue the irrelevant to reopen the controversy over the constitutionality of some acts of Lincoln during the Civil War. See J. G. Randall, Constitutional Problems under Lincoln (Revised ed. 1951). Suffice it to say that he seized railroads in territory where armed hostilities had already interrupted the movement of troops to the beleaguered Capitol, and his order was ratified by the Congress.
64
The only other instances of seizures are those during the periods of the first and second World Wars.19 In his eleven seizures of industrial facilities, President Wilson acted, or at least purported to act,20 under authority granted by Congress. Thus his seizures cannot be adduced as interpretations by a President of his own powers in the absence of statute.
65
Down to the World War II period, then, the record is barren of instances comparable to the one before us. Of twelve seizures by President Roosevelt prior to the enactment of the War Labor Disputes Act in June, 1943, three were sanctioned by existing law, and six others were effected after Congress, on December 8, 1941, had declared the existence of a state of war. In this case, reliance on the powers that flow from declared war has been commendably disclaimed by the Solicitor General. Thus the list of executive assertions of the power of seizure in circumstances comparable to the present reduces to three in the six-month period from June to December of 1941. We need not split hairs in comparing those actions to the one before us, though much might be said by way of differentiation. Without passing on their validity, as we are not called upon to do, it suffices to say that these three isolated instances do not add up, either in number, scope, duration or contemporaneous legal justification, to the kind of executive construction of the Constitution revealed in the Midwest Oil case. Nor do they come to us sanctioned by long-continued acquiescence of Congress giving decisive weight to a construction by the Executive of its powers.
66
A scheme of government like ours no doubt at times feels the lack of power to act with complete, all-embracing, swiftly moving authority. No doubt a government with distributed authority, subject to be challenged in the courts of law, at least long enough to consider and adjudicate the challenge, labors under restrictions from which other governments are free. It has not been our tradition to envy such governments. In any event our government was designed to have such restrictions. The price was deemed not too high in view of the safeguards which these restrictions afford. I know no more impressive words on this subject than those of Mr. Justice Brandeis:
67
'The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid fricition, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocarcy.' Myers v. United States, 272 U.S. 52, 240, 293, 47 S.Ct. 21, 85, 71 L.Ed. 160.
68
It is not a pleasant judicial duty to find that the President has exceeded his powers and still less so when his purposes were dictated by concern for the Nation's wellbeing, in the assured conviction that he acted to avert danger. But it would stultify one's faith in our people to entertain even a momentary fear that the patriotism and the wisdom of the President and the Congress, as well as the long view of the immediate parties in interest, will not find ready accommodation for differences on matters which, however close to their concern and however intrinsically important, are overshadowed by the awesome issues which confront the world. When at a moment of utmost anxiety President Washington turned to this Court for advice, and he had to be denied it as beyond the Court's competence to give, Chief Justice Jay, on behalf of the Court, wrote thus to the Father of his Country:
69
'We exceedingly regret every event that may cause embarrassment to your administration, but we derive consolation from the reflection that your judgment will discern what is right, and that your usual prudence, decision, and firmness will surmount every obstacle to the preservations of the rights, peace, and dignity of the United States.' Letter of August 8, 1793, 3 Johnston, Correspondence and Public Papers of John Jay (1891), 489.
70
In reaching the conclusion that conscience compels, I too derive consolation from the reflection that the President and the Congress between them will continue to safeguard the heritage which comes to them straight from George Washington.
YOUNGSTOWN CO. v. SAWYER
71
FRANKFURTER, J., concurring.
72
APPENDIX I - SYNOPTIC ANALYSIS OF LEGISLATION AUTHORIZING SEIZURE OF INDUSTRIAL PROPERTY.
73
STATUTE DURATION SCOPE OF AUTHORITY LIMITATIONS ON ITS EXERCISE TERMS AND CONDITIONS OF EMPLOYMENT DURING SEIZURE COMPENSATION As Enacted As Extended or Repealed 1. Railroad and Telegraph Act of 1862, 12 Stat. 334.
74
Enacted 1/31/62; amended, 12 Stat. 625, 7/14/62 Not "in force any longer than is necessary for the suppression of this rebellion." President may "take possession of" telegraph lines and railroads; prescribe rules for their operation; and place all officers and employees under military control. a. "When in his [the President's] judgment the public safety may require it."
75
b. President may not "engage in any work of railroad construction." None. President shall appoint three commissioners to assess compensation to which the company is entitled and to report to Congress for its action. 2. § 120 of National Defense Act of 1916, 39 Stat. 166, 213, 50 U.S.C. § 80, as amended.
76
Enacted 6/3/16. No time limit. President, through the head of any department, may seize any plant and may operate plants through the Army ordnance Department. a. Exercisable "in time of war or when war is imminent."
77
b. Plant is equipped for making "necessary supplies or equipment for the Army" or "in the opinion of the Secretary of War" can be transformed readily to such use.
78
c. Owner refuses to give government order precedence or to perform. None. Compensation "shall be fair and just." 3. Army Appropriations Act of 1916, 39 Stat. 619,, 645, 10 U.S.C. § 1361.
79
Enacted 8/29/16. No time limit. President, through Secretary of War, may take possession of and utilize any system or part of any system of transportation. Exercisable "in time of war."* None. Compensation "shall be fair and just." 4. Naval Emergency Fund Act of 1917, 39 Stat. 1168, 1192 - 1195, 50 U.S.C. § 82. No time limit. President may:
80
1. "take over for use or operation" any factory "whether [or not] the United States has ... agreement with the owner or occupier."
81
2. "take immediate possession of any factory" producing ships or war material for the Navy. Exercisable "in time of war" (or of national emergency determined by the President before 3/1/18).
82
a. Owner fails or refuses to give precedence to an order for "ships or war material as the necessities of the Government"; refuses to deliver or to comply with a contract as modified by President.
83
b. Exercisable within "the limits of the amounts appropriated therefor." None.
84
None. President shall determine "just compensation"; if the claimant is dissatisfied, he shall be paid 50 percent of the amount determined by the President and may sue, subject to existing law, in the district courts and the Court of Claims for the rest of "just compensation."
YOUNGSTOWN CO. v. SAWYER.
85
FRANKFURTER, J., concurring.
86
APPENDIX I - Continued.
87
STATUTE DURATION SCOPE OF AUTHORITY LIMITATIONS ON ITS EXERCISE TERMS AND CONDITIONS OF EMPLOYMENT DURING SEIZURE COMPENSATION As Enacted As Extended or Repealed 5. Emergency Shipping Fund Act of 1917, 40 Stat. 182.
88
Enacted 6/15/17. To 6 months after peace with the German Empire, 40 Stat. 182, 183. Repealed after 3 years, § 2 (a) (1), 41 Stat. 988, 6/5/20. President may
89
1. "take over for use or operation" any plant, "whether [or not] United States has ... agreement with the owner or occupier."
90
2. "take immediate possession of any ... plant" "equipped for the building or production of ships or material." Exercisable "within the limits of the amounts herein authorized."
91
Failure or refusal of owner of ship-building plant to give Government orders precedence or to comply with order. None.
92
None. Same as next above, except that the prepaid percentage when the owner is dissatisfied is 75 percent. 6. 1918 Amendments to Emergency Shipping Fund Act of 1917.
93
A. 40 Stat. 535.
94
Enacted 4/22/18.
95
B. 40 Stat. 1020, 1022.
96
Enacted 11/4/18. To 6 months after peace with the German Empire.
97
To 6 months after peace with the German Empire. Repealed after 2 years, 41 Stat. 988, 6/5/20.
98
Repealed after 1 1/2 years, 41 Stat. 988, 6/5/20. President may
99
1. "take possession of ... any street railroad."
100
2. extend seized plants constructing ships or materials therefor and requisition land for use in extensions. a. The street railroad is necessary for transporting employees of plants which are or may be hereafter engaged in "construction of ships or equipment therefor for the United States."
101
b. Exercisable "within the limits of the amounts herein authorized."
102
Exercisable "within the limits of the amounts herein authorized." None.
103
None. Same as next above. 7. Food and Fuel Act of 1917, 40 Stat. 276.
104
Enacted 8/10/17.
105
§ 10, 40 Stat. 276, 279.
106
§ 12, 40 Stat. 276, 279. To end of World War I with Germany. President may
107
1. requisition foods, fuels, feeds, etc., and storage facilities for them.
108
2. take over any factory, packing house, oil pipe line, mine, or other plant where any necessaries are or may be "produced, prepared, or mined, and to operate the same." The requisitioning is "necessary to the support of the Army or the ... Navy, or any other public use connected with the common defense."
109
a. President finds "it necessary to secure an adequate supply of necessaries for ... the Army or ... the Navy, or for any other public use connected with the common defense.."
110
b. President must turn facility back as soon as further Government operation "is not essential for the national security or defense." None.
111
President may make regulations for "the employment, control, and compensation of employees." President "shall ascertain and pay a just compensation"; if the owner is dissatisfied, he shall be paid 75 percent of the amount determined by the President and may sue in the district courts, which are hereby given jurisdiction, for the rest of "just compensation."
112
Same as in the Emergency Shipping Fund Act of 1917, supra.
YOUNGSTOWN CO. v. SAWYER
113
FRANKFURTER, J., concurring.
114
APPENDIX I - Continued.
115
STATUTE DURATION SCOPE OF AUTHORITY LIMITATIONS ON ITS EXERCISE TERMS AND CONDITIONS OF EMPLOYMENT DURING SEIZURE COMPENSATION As Enacted As Extended or Repealed Food and Fuel Act of 1917 - Continued.
116
§ 25, 40 Stat. 276, 284. To end of World War I with Germany. 3. "requisition and take over the plant, business, and all appurtenances thereof belonging to such producer or dealer" of coal and coke, and may operate it through an agency of his choice. Producer or dealer
117
a. Fails to conform to prices or regulations set by the Federal Trade Commission under the direction of the President, who deems it "necessary for the efficient prosecution of the war,"
118
or
119
b. Fails to operate efficiently, or conducts business in a way "prejudicial to the public interest." President may "prescribe ... regulations ... for the employment, control, and compensation of the employees." Same as next above. 8. Joint Resolution of July 16, 1918, 40 Stat. 904. "during the continuance of the present war." Terminated on 7/31/19 by repeal, 7/11/19, 41 Stat. 157. President may "take possession ... of [and operate] any telegraph, telephone, marine cable or radio system." President deems "it necessary for the national security or defense." None. Same as next above. 9. § 16 of Federal Water Power Act of 1920, 41 Stat. 1063, 1072, 16 U.S.C. § 809.
120
Enacted 6/10/20. No time limit. President may take possession of any project, dams, power houses, transmission lines, etc., constructed or operated under a license from the Federal Power Commission and may operate them. a. President believes, as "evidenced by a written order addressed to the holder of any license hereunder [that] the safety of the United States demands it."
121
b. Seizure is "for the purpose of manufacturing nitrates, explosives, or munitions of war, or for any other purpose involving the safety of the United States."
122
c. Control is limited to the "length of time as may appear to the President to be necessary to accomplish said purposes." None. Owner shall be paid "just and fair compensation for the use of said property as may be fixed by the [Federal Power] commission upon the basis of a reasonable profit in time of peace, and the cost of restoring said property to as good condition as existed at the time of the taking over thereof, less the reasonable value of any improvements... made thereto by the United States and which are valuable and serviceable to the [owner]." 10. § 606 of Communications Act of 1934, 48 Stat. 1064, 1104, 47 U.S.C. § 606(c).
123
Enacted 6/19/34. No time limit. President may "use or control ... any such station and/or its apparatus and equipment by any department of the Government under such regulations as he may prescribe." a. President proclaims that there exists
124
(1) war or threat of war or
125
(2) a state of public peril or disaster or other national emergency,
126
or
127
b. It is necessary to preserve the neutrality of the United States. None. President shall ascertain just compensation and certify it to Congress for appropriation; if the owner is dissatisfied, he shall be paid 75 percent of the amount determined by the President and may sue, subject to existing law, in the district courts and the Court of Claims for the rest of "just compensation."
YOUNGSTOWN CO. v. SAWYER
128
FRANKFURTER, J., concurring.
129
APPENDIX I - Continued.
130
STATUTE DURATION SCOPE OF AUTHORITY LIMITATIONS ON ITS EXERCISE TERMS AND CONDITIONS OF EMPLOYMENT DURING SEIZURE COMPENSATION As Enacted As Extended or Repealed 11. Amendments to Communications Act, 56 Stat. 18, 47 U.S.C. § 606(d).
131
Enacted 1/26/42. No time limit. Same power as in § 606(c), Communications Act of 1934, next above. a. President proclaims a state or threat of war.
132
b. President "deems it necessary in the interest of the national security and defense."
133
c. Power to seize and use property continues to "not later than six months after the termination of such state or threat of war" or than a date set by concurrent resolution of Congress. None. Same as next above. 12. § 8(b) of National Defense Act of 1940, 54 Stat. 676, 680.
134
Enacted 6/28/40. No time limit. Repealed in less than 3 months, 9/16/40, 54 Stat. 885, 893. Secretary of Navy, under President's direction, may "take over and operate such plant or facility." a. Secretary of Navy deems any existing plant necessary for the national defense.
135
b. He is unable to reach agreement with its owner for its use or operation. Secretary of Navy may operate the plant "either by Government personnel or by contract with private firms." Secretary of Navy may "fix the compensation." 13. § 9 of Selective Training and Service Act of 1940, 54 Stat. 885, 892, 50 U.S.C. App. (1946 ed.) § 309.
136
Enacted 9/16/40; amended 9/16/40; amended by War Labor Disputes Act, 57 Stat. 1673, 164, q. v., infra. To 5/15/45, 54 Stat. 885, 897. Extended to 3/31/47, 60 Stat., 341, 342. President may "take immediate possession of any such plant." (Extended by amendment to "any plant, mine or facility" capable of producing "any articles or materials which may be required ... or which may be useful" for the war effort. 57 Stat. 163, 164.) a. Plant is equipped for or capable of being readily transformed for the manufacture of necessary supplies.
137
b. Owner refuses to give Government order precedence or to fill it. None. "The compensation ... shall be fair and just." 14. § 3 of War Labor Disputes Act of 1943, 57 Stat. 163, 164, 50 U.S.C. App. *1946 ed.) § 1503.
138
Enacted 6/25/43. To termination of this Act by concurrent resolution by Congress or of hostilities. Plants seized previously may be operated until 6 months after termination of hostilities. President may "take immediate possession" of "any plant, mine, or facility equipped for the manufacture, production, or mining of any articles or materials which may be required ... or which may be useful" for the war effort. a. Finding and proclamation by the President that
139
(1) there is an interruption on account of a labor disturbance,
140
(2) the war effort will be unduly impeded,
141
(3) seizure is necessary to insure operation.
142
b. Plant must be returned to owner within 60 days "after the restoration of the productive efficiency." Same "terms and conditions of employment which were in effect at the time [of taking] possession," except that terms and conditions might be changed by order of the War Labor Board, on application. §§ 4, 5, 57 Stat. 163, 165. Same as next above.
YOUNGSTOWN CO. v. SAWYER
143
FRANKFURTER, J., concurring.
144
APPENDIX I - Continued.
145
STATUTE DURATION SCOPE OF AUTHORITY LIMITATIONS ON ITS EXERCISE TERMS AND CONDITIONS OF EMPLOYMENT DURING SEIZURE COMPENSATION As Enacted As Extended or Repealed 15. Title VIII, "Repricing of War Contracts," of Revenue Act of 1943, 58 Stat. 21, 92, 50 U.S.C. App. (1946 ed.) § 1192.
146
Enacted 2/25/44. To termination of hostilities. President may "take immediate possession of the plant or plants ... and ... operate them in accordance with section 9 of the Selective Training and Service Act of 1940, as amended." a. The Secretary of a Department deems the price of an article or service required directly or indirectly by the Department is unreasonable.
147
b. The Secretary, after the refusal of the person furnishing the article or service to agree to a price, sets a price.
148
c. The person "willfully refuses, or wilfully fails" to furnish the articles or services at the price fixed by the Secretary. None. Same as next above. 16. Selective Service Act of 1948, 62 Stat. 604, 625, 626, 50 U.S.C. App. § 468.
149
Enacted 6/24/48. No time limit. President may "take immediate possession of any plant, mine, or other facility ... and to operate it ... for the production of such articles or materials." a. President with advice of the National Security Resources Board determines prompt delivery of articles or materials is "in the interests of the national security."
150
b. Procurement "has been authorized by the Congress exclusively for the use of the armed forces" or the A.E.C.
151
c. Owner refuses or fails to give precedence to Government order placed with notice that it is made pursuant to this section, or to fill the order properly. None. "Fair and just compensation shall be paid." 17. § 201(a) of Defense Production Act, 64 Stat. 798, 799, 50 U.S.C. App. § 2081(a).
152
Enacted 9/8/50; amended, 65 Stat. 131, 132, q.v., infra. To 6/30/51. But see § 716(a), 64 Stat. 798, 822. Extended to 7/31/51, 65 Stat. 110.
153
Extended to 6/30/52, § 111, 65 Stat. 131, 144. President may "requisition" "equipment, supplies or component parts thereof, or materials or facilities necessary for the manufacture, servicing, or operation of such equipment, supplies or component parts." 64 Stat. 798, 799. Restricted in the main to personal property by § 102(b), 65 Stat. 132. President determines that
154
a. its use is "needed for national defense,"
155
b. the need is "immediate and impending" "will not admit of delay or resort to any other source of supply,"
156
c. other reasonable means of obtaining use of the property have been exhausted. None. President shall determine just compensation as of the time the property is taken; if owner is dissatisfied he shall be promptly paid 75 percent of the amount determined by the President and may sue within three years in the district courts or the Court of Claims, regardless of the amount involved, for the rest of "just compensation." 18. § 102(b)(2) of Defense Production Act Amendments of 1951, 65 Stat. 131, 132, 50 U.S.C. App. § 2081(b).
157
Enacted 7/31/51. To 6/30/52, 65 Stat. 131, 144. Court condemnation of real property in accordance with existing statutes. President deems the real property "necessary in the interest of national defense." None. Under existing statutes for condemnation. Immediate possession given only upon deposit of amount "estimated to be just compensation," 75 percent of which is immediately paid without prejudice to the owner.
YOUNGSTOWN CO. v. SAWYER
158
FRANKFURTER, J., concurring.
159
APPENDIX II. - SUMMARY OF SEIZURES OF INDUSTRIAL PLANTS AND FACILITIES BY THE PRESIDENT.
160
CIVIL WAR PERIOD.
161
PLANT OR FACILITY SEIZED DURATION OF SEIZURE ORDER EFFECTING SEIZURE AUTHORITY CITED REASON FOR SEIZURE OPERATIONS DURING SEIZURE From To Railroads and telegraph lines between Washington and Annapolis, MD.1 4/27/61 (?) Order of Secretary of War dated 4/27/61 appointing Thomas A. Scott officer in charge. War of the Rebellion, Official Records of the Union and Confederate Armies, Ser. I, Vol II, 603. None. Communications between Washington and the North were interrupted by bands of southern sympathizers who destroyed railway and telegraph facilities. Northern troops guarded railway and telegraph facilities; they were repaired and restored to operation under orders of the Secretary of War. Telegraph lines. 2/26/62. (?) Order of Secretary of War dated 2/25/62 appointing Anson Stager officer in charge. Richardson, Messages and Papers of the Presidents, Lincoln, Order of Feb. 25, 1862. "by virtue of the act of Congress" (presumably Railroad and Telegraph Act of 1862, 12 Stat. 334.) To insure effective transmission and security of military communications. Lines operated under military supervision; censorship of messages; lines extended and completed subject to limitations of Joint Resolution of July 14, 1862, 12 Stat. 625. Railroads. 5/25/62 8/8/65. Order of Secretary of War dated 5/25/62. Richardson, Messages and Papers of the Presidents, Lincoln, Order of May 25, 1862. "by virtue of the authority vested by act of Congress" (presumably Railroad and Telegraph Act of 1862, 12 Stat. 334). To insure effective priority to movement of troops and supplies. Railways operated under military supervision: lines extended and completed subject to limitations of Joint Resolution of July 14, 1862, 12 Stat. 625; interruption of regular passenger and freight traffic. World War I Period.2 Bigelow-Hartford Carpet Co., Lowell, Mass. 12/27/17 12/31/19 Order of Secretary of War, Req. 20 A/C, Ord. No. 62, dated 12/27/17. Constitution and laws.3 Requisitioned for use of United States Cartridge Co. for cartridge manufacture. Railroads. 12/28/17 3/1/20 Presidential proclamation, 40 Stat. 1733. Joint Resolution of April 6, 1971.
162
Joint Resolution of Dec. 7, 1917.
163
Act of Aug. 29, 1916.
164
"all other powers thereto me enabling." Labor difficulties; congestion; ineffective operation in terms of war effort. Wage increase; changes in operating practices and procedures. Liberty Ordnance Co., Bridgeport, Conn. 1/7/18 5/20/19 Order of Secretary of War, Req. 26 A/C, Ord. No. 27, dated 1/5/18. Constitution and laws.3 Inadequate financing and other difficulties leading to failure to perform contract for manufacture of 75 mm. guns. Turned over to American Can Co. for operation. Hoboken Land & Improvement Co., Hoboken, N.J. 2/28/19 4/1/19 Order of Secretary of War, Req. 37 A/C, Ord. No. 516, dated 2/28/18. Constitution and laws.3 Requisitioned for use of Remington Arms - U.M.C. Co. for cartridge manufacture. Bijur Motor Appliance Co., Hoboken N.J. 4/1/18
165
8/15/18 5/1/19 Order of Secretary of War, Req. 37 A/C, Ord. No. 516, dated 2/28/18. Constitution and laws.3 Requisitioned for use of Remington Arms - U.M.C. Co. for cartridge manufacture. Jewel Tea Co., Hoboken, N.J. 4/1/18 9/2/19 Order of Secretary of War, Req. 37 A/C, Ord. No. 516, dated 2/28/18. Constitution and laws.3 Requisitioned for use of Remington Arms - U.M.C. Co. for cartridge manufacture.
1
Clyde B. Aitchison states that on March 31, 1861, the Federal authorities took "under military control the Philadelphia, Wilmington & Baltimore Railway to insure uninterrupted communication between the North Atlantic States and Washington." Aitchison, War Time Control of American Railways, 26 Va. L. Rev. 847, 856 (1940). He adds that the return of the road to its private owners followed "shortly thereafter." Ibid. Original documents on this seizure are unavailable and it has, therefore, not been included in the table.
2
The material in this table is taken from original documents in the National Archives and Hearings before the Senate Special Committee Investigating the Munitions Industry, 73d Cong., Part 17, 4270-4271 (1934).
3
Although no specific statutory authority was cited in the seizing order, it is clear from correspondence and reports in connection with the administration of the program that the seizure was effected under wartime legislation. See, e.g., Davisson, History of the Advisory Section, Administrative Division, Ordnance Office in connection with the Commandeering of Private Property, National Archives, Records of the War Department, Office of the chief of Ordnance, O. O. 023/1362, Nov. 1920; Letter from Ordnance Office, Administrative Division to The Adjutant General, National Archives, Records of the War Department, Office of the Adjutant General, AG 386.2, Jan 7, 1919.
YOUNGSTOWN CO. v. SAWYER
166
FRANKFURTER, J., concurring.
167
APPENDIX II. - Continued.
168
PLANT OR FACILITY SEIZED DURATION OF SEIZURE ORDER EFFECTING SEIZURE AUTHORITY CITED REASON FOR SEIZURE OPERATIONS DURING SEIZURE From To Telegraph lines. 7/25/18 7/31/19 Presidential proclamation, 40 Stat. 1807. Joint Resolution of July 16, 1918.
169
"all other powers thereto me enabling." Labor difficulties. Anti-union discrimination terminated. Smith & Wesson, Springfield, Mass. 9/13/18 1/31/19 Order of Secretary of War, Req. 709 B/C, Ord. No. 604, dated 8/31/18. Constitution and laws.3 Labor difficulties. Anti-union discrimination terminated; operation by the National Operating Co., a Government corporation. Federal Enameling & Stamping Co., McKees Rocks, Pa. 9/23/18 12/31/18 Order of Secretary of War, Req. 738 B/C, Ord. No. 609, dated 9/11/18. Constitution and laws.3 Failure to fill compulsory order. Mosler Safe Co., Hamilton, Ohio. 9/23/18 2/25/19 Order of Secretary of War, Req. 781 B/C, Ord. No. 612, dated 9/23/18. Constitution and laws.3 Failure to fill compulsory order. Bush Terminal Co., Brooklyn, N.Y. (?) (?) (?) Act of Aug. 29, 1916.
Food and Fuel Act of 1917. (?) (?)
170
World War II Period4 -- Seizures Connected With Labor Disputes.
1. Before Pearl Harbor.
171
PLANT OR FACILITY SEIZED DURATION OF SEIZURE EXECUTIVE ORDER STATUTORY AUTHORITY CITED5 DURATION OF STOPPAGE CHANGES IN CONDITIONS OF EMPLOYMENT DURING SEIZURE7 BASIS FOR CHANGES REPORTED LEGAL ACTION8 From To From To6 North American Aviation, Inc., Inglewood, Ca. 6/9/41 7/2/41 8773.
172
6 Fed. Reg. 2777. None. (Order cites contracts of company with Government and ownership by Government of machinery, materials and work in progress in plant.) 6/5/41 6/10/41 Property returned on agreement of parties to wage increase and maintenance of membership. Agreement of parties on National Defense Mediation Board recommendation. Federal Shipbuilding & Drydock Co., Kearny, N.J. 8/23/41 1/6/42 8868.
173
6 Fed. Reg. 4349. None. (Order cites contracts of company with Government and ownership by Government of vessels under construction, materials and equipment in yard.) 8/6/41 8/23/41 Maintenance of membership during period of seizure. National Defense Mediation Board recommendation. Air Associates, Inc., Bendix, N.J. 10/30/41 12/29/41 8928.
174
6 Fed. Reg. 5559. None. (Order cites contracts of company with Government and ownership by Government of facilities in plant.) 7/11/41
9/30/41 7/27/41
175
10/24/41 Strikers reinstated over replacements hired by company prior to seizure. Agreement of parties on National Defense Mediation Board recommendation.
176
Footnotes for this page are on the continued page
3
See n. 3, p. 620, supra.
4
The material in this table is summarized from a number of sources, chief of which are the War Labor Reports, contemporary accounts in the New York Times, United States National Wage Stabilization Board, Research and statistics report No. 2 (1946), and Johnson, Government Seizures and Labor Disputes (Philadelphia, Pa., 1948) (unpublished doctoral dissertation at the University of Pennsylvania). Question marks appear in the tables in instances where no satisfactory information on the particular point was available.
5
Each of the Executive Orders uses the stock phrase "the constitution and laws" as authority for the President's action as well as his position as Commander in Chief. Only specific statutory authority relied upon is given in this table. The form of reference of the particular Executive Order is used. Statutes referred to in the table are analyzed in Appendix I, supra, p. 615. For convenience, their citations are repeated here:
177
(1) Army Appropriations Act of Aug. 29, 1916, 39 Stat. 619, 645, 10 U.S.C. § 1361.
178
(2) Federal Water Power Act of 1920, § 16, 41 Stat. 1063, 1072, 16 U.S.C. § 809.
179
(3) Selective Training and Service Act of 1940, § 9, 54 Stat. 885, 892.
180
(4) War Labor Disputes Act., § 3, 57 Stat. 163, 164.
181
(5) Revenue Act of 1943, Tit. VIII, "Repricing of War Contracts," 58 Stat. 21, 92.
182
When seizures of transportation facilities were effected through agencies other than the War Department, the First War Powers Act of 1941, 55 Stat. 838, was cited. Title I of that Act permitted the President to shift certain functions among executive agencies in aid of the war effort. The Act of Aug. 29, 1916, authorizing seizure of transportation facilities, specified that it should be accomplished through the Secretary of War.
6
Stoppages continuing during seizure are indicated by an asterisk (*).
7
Unless otherwise indicated, changes in conditions of employment instituted during seizure were continued by management upon the return of the facilities to its control.
8
Validity of seizure was challenged in comparatively few cases. Most litigation concerned the consequences of seizure. Cases in which the validity of the seizure was attacked are indicated by a dagger ( ).
YOUNGSTOWN CO. v. SAWYER
183
FRANKFURTER, J., concurring.
184
APPENDIX II - Continued.
185
2. Between Pearl Harbor and the Passage of the War Labor Disputes Act, June, 25, 1943.
186
PLANT OR FACILITY SEIZED DURATION OF SEIZURE EXECUTIVE ORDER STATUTORY AUTHORITY CITED5 DURATION OF STOPPAGE CHANGES IN CONDITIONS OF EMPLOYMENT DURING SEIZURE7 BASIS FOR CHANGES REPORTED LEGAL ACTION8 From To From To6 Toledo, P. & W. R. Co. 3/21/42 10/1/45 9108.
187
7 Fed. Reg. 2201. None. 12/28/41 3/21/42 Wage increase during period of seizure. War Labor Board recommendation. Toledo P. & W. R. Co. v. Stover, 60 F. Supp. 587 (S. D. Ill. 1945. General Cable Co., Bayonne, N.J., plant. 8/13/42 8/20/42 9220.
188
7 Fed. Reg. 6413. None. 8/10/42 8/13/42 None. War Labor Board recommendation. S. A. Woods Machine Co., South Boston, Mass. 8/19/42 8/25/42 9225
189
7 Fed. Reg. 6627. None. None. None. Maintenance of membership. War Labor Board recommendation. Coal Mines. 5/2/43 10/12/43 9340.
8 Fed. Reg. 5695. None. 4/22/43
6/1/43
6/20/43 5/2/43
190
6/7/43*
191
(?)* Six-day week; eight-hour day.
192
(To increase take-home pay.) Order of the Secretary of Interior. United States v. Pewee Coal Co., 341 U.S. 114; NLRB v. West Ky. Coal Co., 152 F. 2d 198 (6th Cir. 1945); Glen Alden Coal Co. v. NLRB, 141 F. 2d 47 (3d Cir. 1944.). American R. Co. of Porto Rico. 5/13/43 7/1/44 9341.
193
8 Fed. Reg. 6323. None. 5/12/43 5/13/43 Wage increase. War Labor Board recommendation.
194
3. Between June 25, 1943, and VJ Day.
195
Atlantic Basin Iron Works, Brooklyn, N.Y. 9/3/43 9/22/43 9375.
196
8 Fed. Reg. 12253. War Labor Disputes Act. None. None. Maintenance of membership. War Labor Board recommendation. Coal Mines. 11/1/43 6/21/44 9393.
197
8 Fed. Reg. 14877. War Labor Disputes Act. 10/12/43
198
11/1/43 11/4/43* Changes in wages and hours. Agreement with Secretary of Interior. Leather Manufacturers in Salem, Peabody, and Danvers, Mass. 11/20/43 12/13/43 9395B.
8 Fed. Reg 16957. None. 9/25/43
199
(sporadic) 11/24/43* None. (Jurisdictional strike.) None. Western Electric Co., Point Breeze plant, Baltimore, Md. 12/19/43 3/23/44 9408.
200
8 Fed. Reg. 16958. War Labor Disputes Act. 12/14/43 12/19/43 None. (Strike in protest of War Labor Board nonsegregation ruling.) None. Railroads. 12/30/43 1/18/44 9412.
201
8 Fed. Reg. 17395. Act of Aug. 29, 1916. None. None. Control relinquished when parties accepted Presidential compromise of wage demands. Presidential arbitration based on Railway Labor Act Emergency Board recommendations. Thorne v. Washington Terminal Co., 55 F. Supp. 139 (D.D.C. 1944.) Fall River, Mass., Textile Plants. 2/7/44 2/28/44 9420.
202
9 Fed. Reg. 1563. War Labor Disputes Act. 12/13/43 2/14/44* Property returned upon agreement by parties on seniority provisions. War Labor Board recommendation.
5
See n. 5, p. 621, supra.6 See n. 6, p. 621, supra.7 See n. 7, p. 621, supra.8 See n. 8, p. 621, supra.
YOUNGSTOWN CO. v. SAWYER
203
FRANKFURTER, J., concurring.
204
APPENDIX II - Continued.
205
PLANT OR FACILITY SEIZED DURATION OF SEIZURE EXECUTIVE ORDER STATUTORY AUTHORITY CITED5 DURATION OF STOPPAGE CHANGES IN CONDITIONS OF EMPLOYMENT DURING SEIZURE7 BASIS FOR CHANGES REPORTED LEGAL ACTION8 From To From To6 Department of Water and Power, Los Angeles, Calif. 2/23/44 2/29/44 9426.
206
9 Fed. Reg. 2113. War Labor Disputes Act. 2/14/44 2/24/44 None. None. Jenkins Bros., Inc., Bridgeport, Conn. 4/13/44 6/15/44 9435.
207
9 Fed. Reg. 4063. § 9, Selective Service Act of 1940 as amended. None. None. Wage increase. War Labor Board recommendation. In re Jenkins Bros., Inc. 15 W. L. R. 719 (D.D.C. 1944.) Ken-Rad Tube & Lamp Co., Owensboro, Ky. 4/13/44 6/15/44 9436.
208
9 Fed. Reg. 4063. § 9, Selective Service Act of 1940 as amended. None. None. Changes in wage scales; maintenance of membership. War Labor Board recommendation. Ken-Rad Tube & Lamp Corp. v. Badeau, 55 F. Supp. 193 (W.D. Ky. 1944). Montgomery Ward & Co., Chicago, Ill., facilities 4/25/44 5/9/44 9438.
209
9 Fed. Reg. 4459. None. None. None. None. (Government extended expired contract pending NLRB election to determine bargaining representative.) War Labor Board recommendation. United States v. Montgomery Ward & Co., 150 F. 2d 369 (7th Cir. 1945.) Montgomery Ward & Co., Hummer Mfg. division, Springfield, Ill. 5/21/44 7/2/45 9443.
210
9 Fed. Reg. 5395. § 9, Selective Service Act of 1940 as amended. 5/5/44 5/21/44 Maintenance of membership; voluntary check-off. War Labor Board recommendation. Philadelphia Transportation Co., Philadelphia, Pa. 8/3/44 8/17/44 9459.
211
9 Fed. Reg. 9878. Act of Aug. 29, 1916.
212
First War Powers Act of 1941.
213
§ 9 of Selective Service Act of 1940, as amended. 8/1/44 8/7/44* None. (Strike in protest of WLB nonsegregation ruling.) None. United States v. McMenamin, 58 F. Supp. 478 (E. D. Pa. 1944). Midwest Trucking Operators. 8/11/44 1/1/45
214
11/1/45 9426.
215
9 Fed. Reg. 10071. Act of Aug. 29, 1916.
216
First War Powers Act of 1941.
217
§ 9 of Selective Service Act of 1940, as amended. 8/4/44 8/11/44 Wage increase. War Labor Board recommendation. San Francisco, Calif., Machine Shops. 8/14/44
218
8/19/44 9/14/45 9463.
219
9 Fed. Reg. 9879.
9466.
220
9 Fed. Reg. 10139. § 9, Selective Service Act of 1940, as amended. Sporadic. Sporadic. Union agreed not to discipline employees who worked over-time. Cancellation of employee draft deferments, gas rations, and job referral rights. War Labor Board recommendation. San Francisco Lodge No. 68 IAM v. Forrestal, 58 F. Supp. 466 (N.D. Calif. 1944.) Anthracite Coal Mines. 8/23/44
9/19/44 2/24/45 9469.9
221
9 Fed. Reg. 10343. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act. 6/29/44
8/?/44 8/23/44
222
9/?/4410 None. None. International Nickel Co., Huntington, W. Va., plant. 8/29/44 10/14/44 9473.
223
9 Fed. Reg. 10613. § 9, Selective Service Act of 1940 as amended. 8/1844 8/29/44 None. None.
5
See n. 5, p. 621, supra. 6 See n. 6, p. 621, supra. 7 See n. 7, p. 621, supra. 8 See n. 8, p. 621, supra.
224
9 This order was followed by a series drawn in the same terms extending the seizure to additional mines. The Executive Orders were: No. 9474, 9 Fed. Reg. 10815; No. 9476, 9 Fed. Reg. 10817; No. 9478, 9 Fed. Reg. 11045; No. 9481, 9 Fed. Reg. 11387; No. 9482, 9 Fed. Reg. 11459; No. 9483, 9 Fed. Reg. 11601.
225
10 A series of strikes for recognition by supervisory employees at the various mines were usually, though not always, terminated on seizure of the affected property.
YOUNGSTOWN CO. v. SAWYER
226
FRANKFURTER, J., concurring.
227
APPENDIX II - Continued.
228
PLANT OR FACILITY SEIZED DURATION OF SEIZURE EXECUTIVE ORDER STATUTORY AUTHORITY CITED5 DURATION OF STOPPAGE CHANGES IN CONDITIONS OF EMPLOYMENT DURING SEIZURE7 BASIS FOR CHANGES REPORTED LEGAL ACTION8 From To From To6 Hughes Tool Co., Houston Tex., facilities 9/2/44 8/29/45 9475A.
229
9 Fed. Reg. 10943. § 9, Selective Service Act of 1940 as amended. None. None. Maintenance of membership during period of seizure. War Labor Board recommendation. Cleveland Graphite Bronze Co., Cleveland, Ohio. 9/5/44 11/8/44 9477.
230
9 Fed. Reg. 10941. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act. 8/31/44 9/5/44 Union agreed to arbitrate grievances which had precipitated the strike. War Labor Board recommendation. Twentieth Century Brass Works, Inc., Minneapolis, Minn. 9/9/44 2/17/45 9480.
231
9 Fed. Reg. 11143. § 9, Selective Service Act of 1940 as amended. 8/21/44 9/9/44 Wage increase. War Labor Board recommendation. Farrell Cheek Steel Co., Sandusky, Ohio 9/23/44 8/28/45 9484.
232
9 Fed. Reg. 11731. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act. 9/11/44 9/23/44 Wage increase; maintenance of membership during period of seizure. War Labor Board recommendation. Toledo, Ohio, Machine Shops. 11/4/44 11/6/44 9496.
233
9 Fed. Reg. 13187. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act. 10/27/44 11/5/44 None. (Jurisdictional strike.) None. Cudahy Bros. Co., Cudahy, Wis. 12/6/44 8/31/45 9505.
234
9 Fed. Reg. 14473. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act. None. None. Maintenance of membership; voluntary check-off. War Labor Board recommendation. Montgomery Ward & Co., Detroit, Mich., and other facilities 12/27/44 10/18/45 9508
235
9 Fed. Reg. 15079. War Labor Disputes Act.
236
§ 9, Selective Service Act of 1940 as amended. 12/9/44 12/27/44 Maintenance of membership and voluntary check-off during period of seizure. War Labor Board recommendation. National War Labor Board v. Montgomery Ward & Co., 144 F. 2d 528 (D. C. Cir. 1944.) Cleveland Electric Illuminating Co., Cleveland, Ohio. 1/3/45 1/15/45 9511.
237
10 Fed. Reg. 549. § 9, Selective Service Act of 1940 as amended. 1/12/45 1/13/45 None. None. Bingham & Garfield R. R., Utah. 1/24/45 8/29/45 9516.
238
10 Fed. Reg. 1313. Act of Aug. 29, 1916.
239
First War Powers Act of 1941.
240
War Labor Disputes Act. 1/23/45 1/24/45 Property returned upon agreement by parties on wage scale for certain positions. Railway Labor Act Emergency Board recommendation. American Enka Corp., Enka, N. C. 2/18/45 6/6/45 9523.
241
10 Fed. Reg. 2133. War Labor Disputes Act.
242
Selective Service Act as amended. 2/7/45 2/18/45 None. (Strike over question of contract interpretation submitted to arbitration.) War Labor Board recommendation. Coal Mines:
243
Bituminous.
244
Anthracite.
4/10/45
5/3/45
5/12/45
10/25/45
6/23/45
9536.
245
10 Fed. Reg. 3939.
9548.
246
10 Fed. Reg. 5025.
247
§ 9, Selective Service Act as amended by the War Labor Disputes Act.
4/1/45
5/1/45
4/11/45
248
5/24/45*
249
Wage increase.
250
Wage increase.
251
Agreement of parties.
252
Agreement of parties. Cities Service Refining Corp., Lake Charles, La., plant. 4/17/45 12/23/45 9540.
253
10 Fed. Reg. 4193. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act. (?) 4/17/45 None. (Strike over housing conditions.) None.5 See n. 5, p. 621, supra.6 See n. 6, p. 621, supra.7 See n. 7, p. 621, supra.8 See n. 8, p. 621, supra. YOUNGSTOWN CO. v. SAWYER
254
FRANKFURTER, J., concurring.
255
APPENDIX II - Continued.
256
PLANT OR FACILITY SEIZED DURATION OF SEIZURE EXECUTIVE ORDER STATUTORY AUTHORITY CITED5 DURATION OF STOPPAGE CHANGES IN CONDITIONS OF EMPLOYMENT DURING SEIZURE7 BASIS FOR CHANGES REPORTED LEGAL ACTION8 From To From To6 United Engineering Co., Ltd., San Francisco, Calif. 4/25/45 8/31/45 9542.
257
10 Fed. Reg. 4591. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act. 4/12/45 (?) Union's privileges under contract revoked. War Labor Board recommendation. Cocker Machine & Foundry Co., Gastonia, N. C. 5/20/45 8/31/45 9552.
258
10 Fed. Reg. 5757. § 9, Selective Service Act of 1940 as amended as amended by the War Labor Disputes Act. (?) 5/20/45 Wage increase; maintenance of membership during period of seizure. War Labor Board recommendation. Chicago, Ill, Motor Carriers. 5/23/45 8/16/45 9554.
259
10 Fed. Reg. 5981. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act.
260
Act of Aug. 29, 1916.
First War Powers Act of 1941. 5/19/45
6/16/45 5/24/45
261
6/27/45* Wage increase. War Labor Board recommendation. Gaffney Mfg. Co., Gaffney, S. C. 5/28/45 9/9/45 9559.
262
10 Fed. Reg. 6287. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act. (?) 5/28/45 Wage increase and maintenance of membership during period of seizure. War Labor Board recommendation. Mary-Leila Cotton Mills, Greensboro, Ga. 6/1/45 8/31/45 9560.
263
10 Fed. Reg. 6547. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act. 4/1/45 6/1/45 Contract extension; maintenance of membership and voluntary check-off during period of seizure. War Labor Board recommendation. Humble Oil & Refining Co., Ingleside, Tex., plant. 6/5/45 9/10/45 9564.
264
10 Fed. Reg. 6791. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act. None. None. Maintenance of membership during period of seizure. War Labor Board recommendation. Eighth Regional War Labor Bd. v. Humble Oil & Refining Co., 145 F. 2d 462 (5th Cir. 1945.) Pure Oil Co., Cabin Creek oilfield, Dawes, W. Va., facilities. 6/6/45 9/10/45 9565.
265
10 Fed. Reg. 6792. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act. 5/14/45 6/6/45 Maintenance of membership during period of seizure. War Labor Board recommendation. Scranton Transit Co., Scranton, Pa. 6/14/45 7/8/45 9570.
266
10 Fed. Reg. 7235. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act.
267
Act of Aug. 20, 1916.
268
First War Powers Act of 1941. 5/20/45 6/14/45 None. None. Diamond Alkali Co., Painesville, Ohio. 6/19/45 7/19/45 9574.
269
10 Fed. Reg. 7435. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act. 6/15/45 6/19/45 Property returned upon agreement by parties to wage increase. None. Texas Co., Port Arthur, Tex., plant. 7/1/45 9/10/45 9577A.
270
10 Fed. Reg. 8090. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act. 6/29/45 7/1/45 None. (Strike over racial discrimination.) None.
5
See n. 5, p. 621, supra. 6 See n. 6, p. 621, supra. 7 See n. 7, p. 621, supra. 8 See n. 8, p. 621, supra.
YOUNGSTOWN CO. v. SAWYER
271
FRANKFURTER, J., concurring.
272
APPENDIX II - Continued.
273
PLANT OR FACILITY SEIZED DURATION OF SEIZURE EXECUTIVE ORDER STATUTORY AUTHORITY CITED5 DURATION OF STOPPAGE CHANGES IN CONDITIONS OF EMPLOYMENT DURING SEIZURE7 BASIS FOR CHANGES REPORTED LEGAL ACTION8 From To From To6 Goodyear Tire & Rubber Co., Akron, Ohio. 7/4/45 8/30/45 9585.
274
10 Fed. Reg. 8335. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act. 6/20/45 7/4/45 Agreement by union to submit future disputes to federal agency. (?). Sinclair Rubber Co., Houston, Tex., butadiene plant 7/19/45 11/19/45 9589A.
275
10 Fed. Reg. 8949. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act. None. None. Change in union security arrangements. War Labor Board recommendation. Springfield Plywood Co., Springfield, Oreg. 7/25/45 8/30/45 9593.
276
10 Fed. Reg. 9379. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act. (?) 7/25/45 None. None. U.S. Rubber Co., Detroit, Mich., facilities 7/31/45 10/10/45 9595.
277
10 Fed. Reg. 9571. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act. 7/14/45 7/31/45 None. None. 4. Between VJ Day and the Expiration of the War Labor Disputes Act Seizure Powers, Dec. 31, 1946. Illinois Central R. Co. 8/23/45 5/27/46 9602.
278
10 Fed. Reg. 10957. § 9, Selective Service Act of 1940 as amended by § of the War Labor Disputes Act.
279
Act of Aug. 29, 1916.
280
First War Powers Act of 1941. None. None. None. (Jurisdictional strike) Railway Labor Act Emergency Board recommended against change. Petroleum Refineries and Pipelines. (One-half national refining capacity.) 10/4/45 12/12/45
281
2/?/46 9639.
282
10 Fed. Reg. 12592. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act. 9/16/45 10/5/45 Plants returned on agreement of owners to 18 percent wage increase. Ad hoc fact-finding board recommendation. Capital Transit Co., Washington, D.C. 11/21/45 1/7/46 9658.
283
10 Fed. Reg. 14351. § 9, Selective Service Act of 1940 as amended by § 3 of the War Labor Disputes Act.
284
Act of Aug. 29, 1916.
First War Powers Act of 1941. 11/6/45
11/20/45 11/7/45
285
11/21/45 Facilities returned when parties agreed to arbitration award on wages. Ad hoc arbitration board award. Great Lakes Towing Co., Cleveland, Ohio. 11/29/45 12/18/46 9661.
286
10 Fed. Reg. 14591. § 9, Selective Service Act of 1940 as amended by §3 of the War Labor Disputes Act.
287
Act of Aug. 29, 1916.
First War Powers Act of 1941. 9/4/45
288
11/1/45 11/29/45 Wage increase. National Wage Stabilization Board recommendation. Meatpacking Industry. 1/24/46 3/12/46
289
5/22/46 9685.
290
11 Fed. Reg. 989.
9690.
291
11 Fed. Reg. 1337. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act. 1/16/46 1/28/46* Plants returned as companies agreed to wage increase recommended by fact-finding board. Ad hoc fact-finding board recommendation approved by National Wage Stabilization Board.
5
See n. 5, p. 621, supra. 6 See n. 6, p. 621, supra. 7 See n. 7, p. 621, supra. 8 See n. 8, p. 621, supra.
YOUNGSTOWN CO. v. SAWYER
292
FRANKFURTER, J., concurring.
293
APPENDIX II - Continued.
294
PLANT OR FACILITY SEIZED DURATION OF SEIZURE EXECUTIVE ORDER STATUTORY AUTHORITY CITED5 DURATION OF STOPPAGE CHANGES IN CONDITIONS OF EMPLOYMENT DURING SEIZURE7 BASIS FOR CHANGES REPORTED LEGAL ACTION8 From To From To6 New York Harbor Tugboat Companies. 2/5/46 3/3/46 9693.
295
11 Fed. Reg. 1421. § 9, Selective Service Act of 1940 as amended by § 3 of the War Labor Disputes Act.
296
Act of Aug. 29, 1916.
297
First War Powers Act of 1941. 2/4/46 2/13/46* Properties returned after agreement of parties to arbitrate dispute. None. Railroads. 5/17/46 5/26/46 9727.
298
11 Fed. Reg. 5461. § 9, Selective Service Act of 1940 as amended by § 3 of the War Labor Disputes Act.
299
Act of Aug. 29, 1916.
300
First War Powers Act of 1941. 5/23/46 5/25/46* Properties returned after unions agreed to Presidential compromise of wage demands. Railway Labor Act Emergency board recommendation as modified by President. Bituminous Coal Mines. 5/21/46 6/30/47 9728.
301
11 Fed. Reg. 5593. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act. 4/1/46
5/25/46 5/11/46
302
5/30/46* Wage increase, welfare and retirement fund, mine safety provisions, and recognition of UMW as representative of supervisory employees during period of seizure. Contract between union and Secretary of Interior. Union States v. United Mine Workers, 330 U. S. 258; Jones & Laughlin Steel Co. v. UMW, 159 F. 2d 18 (D.C. Circ. 1946); Krug v. Fox, 161 F. 2d 1013 (4th circ. 1947.) Monongahela Connecting R. Co., Pittsburgh, Pa. 6/14/46 8/12/46 9736.
303
11 Fed. Reg. 6661. § 9, Selective Service Act of 1940 as amended by § 3 of the War Labor Disputes Act.
304
Act of Aug. 29, 1916.
305
First War Powers Act of 1941. 6/10/46 6/14/46 None. 5. Since the expiration of the War Labor Disputes Act Seizures Powers, Dec. 31, 1946. Railroads. 5/10/48 7/9/48 9957.
306
13 Fed. Reg. 2503. Act of Aug. 29, 1916. None. None. Property returned on agreement of parties to wage increase. Railway Labor Act Emergency Board recommendation as modified. United States v. Brotherhood of Locomotive Engineers, 79 F. Supp. 485 (D.D.C. 1948). Chicago, Rock Island & Pacific R. Co. 7/8/50 5/23/52 10141.
307
15 Fed. Reg. 4363. Act of Aug. 29, 1916. 6/25/50 7/8/50 Property returned on agreement of parties to wage increase. Railway Labor Act Emergency Board recommendation as modified. Railroads. 8/27/50 5/23/52 10155.
308
15 Fed. Reg. 5785. Act of Aug. 29, 1916. 12/10/50
1/29/51
3/9/52 12/15/50
2/19/51
309
3/12/52 Agreement reached by carriers and some of the Brotherhoods put into effect. Property returned on agreement of parties to wage increase. Railway Labor Act Emergency Board recommendation as modified.
5
See n. 5, p. 621, supra. 6 See n. 6, p. 621, supra. 7 See n. 7, p. 621, supra. 8 See n. 8, p. 621, supra.
YOUNGSTOWN CO. v. SAWYER
310
FRANKFURTER, J., concurring.
311
APPENDIX II - Continued.
312
World War II Period4 -- Seizures Unconnected with Labor Disputes.
313
PLANT OR FACILITY SEIZED DURATION OF SEIZURE EXECUTIVE ORDER STATUTORY AUTHORITY CITED5 REASONS FOR SEIZURE CHANGES INSTITUTED DURING SEIZURE From To Grand River Dam Authority, Oklahoma. 11/19/41 7/31/46 8944.
314
6 Fed. Reg. 5947. § 16, Federal Power Act. This was a State power project, financed by federal loan and grant. Seizure was based on (1) State default on loan interest; (2) refusal of State legislature to issue bonds to complete financing; (3) failure to meet scheduled completion date in power-short defense area. Federal Works Administrator replaced management and completed the project. Transferred to Department of Interior, Executive Order No. 9373, 8 Fed. Reg. 12001, 8/30/43. Returned pursuant to Act of July 31, 1946, 60 Stat. 743. Brewster Aeronautical Corp., Long Island City, N.Y., Newark, N.J., Johnsville, Pa. 4/18/42 5/20/42 9141.
315
7 Fed. Reg. 2961. None. (1) Inefficient management; (2) failure to operate at full capacity; (3) failure to maintain delivery schedules on Army and Navy aircraft. (Congressional investigation suggested labor difficulties as well, due to employment of enemy aliens.) New board of directors and officers installed; majority shareholders established 2 1/2 year voting trust in favor of new president. Triumph Explosives, Inc., Maryland and Delaware plants. 10/12/42 2/28/43
316
6/5/43 9254.
317
7 Fed. Reg. 8333. None. Overpayments (presumably bribes) of $1,400,000 to procurement officers. New board of directors and officers; indictments against former officials. Howarth Pivoted Bearings Co., Philadelphia, Pa. 6/14/43 8/25/45 9351.
318
8 Fed. Reg. 8097. None. Inefficient management. Designees of Secretary of Navy operated plant for duration of war. Remington Rand, Inc., Southport, N.Y., plant. 11/23/43 9/30/44 9399.
319
8 Fed. Reg. 16269. § 9, Selective Service Act of 1940 as amended. (1) Norden bombsight parts production of unacceptable quality; (2) deliveries behind schedule. Designees of Secretary of Navy supervised operations for duration of seizure. Los Angeles Shipbuilding & Drydock Corp., Los Angeles, Calif. 12/8/43 8/25/45 9400.
320
8 Fed. Reg. 16641. § 9, Selective Service Act of 1940 as amended. (1) Excessive costs; (2) production behind schedule. Operated by contractor (Todd Shipyard Co.) for duration of war. York Safe & Lock Co., York, Pa. 1/23/44 3/15/45 9416.
321
9 Fed. Reg. 936. § 9, Selective Service Act of 1940 as amended. (1) Inefficient management; (2) deliveries behind schedule. Designees of Secretary of Navy operated company for duration of war, except for a portion which was condemned and transferred to Blaw-Knox Co. Lord Mfg. Co., Erie, Pa.11 10/24/44 8/25/45 9493.
322
9 Fed. Reg. 12860. Tit. VIII, Revenue Act of 1943.
323
§ 9, Selective Service Act of 1940 as amended. Refusal to deliver items at "fair and reasonable prices" fixed by the Secretary of the Navy in contract renegotiation. Designees of Secretary of Navy operated company for duration of war.
4
See n. 4, p. 621, supra.5 See n. 5, p. 621, supra.11 See Lord Mfg. Co. v. Collins, 62 F. Supp. 79 (W. D. Pa. 1945).
324
Mr. Justice DOUGLAS, concurring.
325
There can be no doubt that the emergency which caused the President to seize these steel plants was one that bore heavily on the country. But the emergency did not create power; it merely marked an occasion when power should be exercised. And the fact that it was necessary that measures be taken to keep steel in production does not mean that the President, rather than the Congress, had the constitutional authority to act. The Congress, as well as the President, is trustee of the national welfare. The President can act more quickly than the Congress. The President with the armed services at his disposal can move with force as well as with speed. All executive power—from the reign of ancient kings to the rule of modern dictators—has the outward appearance of efficiency.
326
Legislative power, by contrast, is slower to exercise. There must be delay while the ponderous machinery of committees, hearings, and debates is put into motion. That takes time; and while the Congress slowly moves into action, the emergency may take its toll in wages, consumer goods, war production, the standard of living of the people, and perhaps even lives. Legislative action may indeed often be cumbersome, time-consuming, and apparently inefficient. But as Mr. Justice Brandeis stated in his dissent in Myers v. United States, 272 U.S. 52, 293, 47 S.Ct. 21, 85, 71 L.Ed. 160:
327
'The doctrine of the separation of powers was adopted by the Convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.' We therefore cannot decide this case by determining which branch of government can deal most expeditiously with the present crisis. The answer must depend on the allocation of powers under the Constitution. That in turn requires an analysis of the conditions giving rise to the seizure and of the seizure itself.
328
The relations between labor and industry are one of the crucial problems of the era. Their solution will doubtless entail many methods—education of labor leaders and business executives; the encouragement of mediation and conciliation by the President and the use of his great office in the cause of industrial peace; and the passage of laws. Laws entail sanctions—penalties for their violation. One type of sanction is find and imprisonment. Another is seizure of property. An industry may become so lawless, so irresponsible as to endanger the whole economy. Seizure of the industry may be the only wise and practical solution.
329
The method by which industrial peace is achieved is of vital importance not only to the parties but to society as well. A determination that sanctions should be applied, that the hand of the law should be placed upon the parties, and that the force of the courts should be directed against them, is an exercise of legislative power. In some nations that power is entrusted to the executive branch as a matter of course or in case of emergencies. We chose another course. We chose to place the legislative power of the Federal Government in the Congress. The language of the Constitution is not ambiguous or qualified. It places not some legislative power in the Congress; Article I, Section 1 says 'All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.'
330
The legislative nature of the action taken by the President seems to me to be clear. When the United States takes over an industrial plant to settle a labor controversy, it is condemning property. The seizure of the plant is a taking in the constitutional sense. United States v. Pewee Coal Co., 341 U.S. 114, 71 S.Ct. 670, 95 L.Ed. 809. A permanent taking would amount to the nationalization of the industry. A temporary taking falls short of that goal. But though the seizure is only for a week or a month, the condemnation is complete and the United States must pay compensation for the temporary possession. United States v. General Motors Corp., 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311; United States v. Pewee Coal Co., supra.
331
The power of the Federal Government to condemn property is well established. Kohl v. United States, 91 U.S. 367, 23 L.Ed. 449. It can condemn for any public purpose; and I have no doubt but that condemnation of a plant, factory, or industry in order to promote industrial peace would be constitutional. But there is a duty to pay for all property taken by the Government. The command of the Fifth Amendment is that no 'private property be taken for public use, without just compensation. That constitutional requirement has an important bearing on the present case.
332
The President has no power to raise reveunes. That power is in the Congress by Article I, Section 8 of the Constitution. The President might seize and the Congress by subsequent action might ratify the seizure.1 But until and unless Congress acted, no condemnation would be lawful. The branch of government that has the power to pay compensation for a seizure is the only one able to authorize a seizure or make lawful one that the President had effected.2 That seems to me to be the necessary result of the condemnation provision in the Fifth Amendment. It squares with the theory of checks and balances expounded by Mr. Justice BLACK in the opinion of the Court in which I Join.
333
If we sanctioned the present exercise of power by the President, we would be expanding Article II of the Constitution and rewriting it to suit the political conveniences of the present emergency. Article II which vests the 'executive Power' in the President defines that power with particularity. Article II, Section 2 makes the Chief Executive the Commander in Chief of the Army and Navy. But our history and tradition rebel at the thought that the grant of military power carries with it authority over civilian affairs. Article II, Section 3 provides that the President shall 'from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient.' The power to recommend legislation, granted to the President, serves only to emphasize that it is his function to recommend and that it is the function of the Congress to legislate. Article II, Section 3, also provides that the President 'shall take Care that the Laws be faithfully executed.' But as Mr. Justice BLACK and Mr. Justice FRANKFURTER point out the power to execute the laws starts and ends with the laws Congress has enacted.
334
The great office of President is not a weak and powerless one. The President represents the people and is their spokesman in domestic and foreign affairs. The office is respected more than any other in the land. It gives a position of leadership that is unique. The power to formulate policies and mould opinion inheres in the Presidency and conditions our national life. The impact of the man and the philosophy he represents may at times be thwarted by the Congress. Stalemates may occur when emergencies mount and the Nation suffers for lack of harmonious, reciprocal action between the White House and Capitol Hill. That is a risk inherent in our system of separation of powers. The tragedy of such stalemates might be avoided by allowing the President the use of some legislative authority. The Framers with memories of the tyrannies produced by a blending of executive and legislative power rejected that political arrangement. Some future generation may, however, deem it so urgent that the President have legislative authority that the Constitution will be amended. We could not sanction the seizures and condemnations of the steel plants in this case without reading Article II as giving the President not only the power to execute the laws but to make some. Such a step would most assuredly alter the pattern of the Constitution.
335
We pay a price for our system of checks and balances, for the distribution of power among the three branches of government. It is a price that today may seem exorbitant to many. Today a kindly President uses the seizure power to effect a wage increase and to keep the steel furnaces in production. Yet tomorrow another President might use the same power to prevent a wage increase, to curb trade unionists, to regiment labor as oppressively as industry thinks it has been regimented by this seizure.
336
Mr. Justice JACKSON, concurring in the judgment and opinion of the cuort.
337
That comprehensive and undefined presidential powers hold both practical advantages and grave dangers for the country will impress anyone who has served as legal adviser to a President in time of transition and public anxiety. While an interval of detached reflection may temper teachings of that experience, they probably are a more realistic influence on my views than the conventional materials of judicial decision which seem unduly to accentuate doctrine and legal fiction. But as we approach the question of presidential power, we half overcome mental hazards by recognizing them. The opinions of judges, no less than executives and publicists, often suffer the infirmity of confusing the issue of a power's validity with the cause it is invoked to promote, of confounding the permanent executive office with its temporary occupant. The tendency is strong to emphasize transient results upon policies—such as wages or stabilization—and lose sight of enduring consequences upon the balanced power structure of our Republic.
338
A judge, like an executive adviser, may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves. Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other.1 And court decisions are indecisive because of the judicial practice of dealing with the largest questions in the most narrow way.
339
The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity.
340
1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.2 In these circumstances, and in these only, may he be said (for what it may be worth), to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.
341
2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.3
342
3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only be disabling the Congress from acting upon the subject.4 Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibruim established by our constitutional system.
343
Into which of these classifications does this executive seizure of the steel industry fit? It is eliminated from the first by admission, for it is conceded that no congressional authorization exists for this seizure. That takes away also the support of the many precedents and declarations which were made in relation, and must be confined, to this category.5
344
Can it then be defended under flexible tests available to the second category? It seems clearly eliminated from that class because Congress has not left seizure of private property an open field but has covered it by three statutory policies inconsistent with this seizure. In cases where the purpose is to supply needs of the Government itself, two courses are provided: one, seizure of a plant which fails to comply with obligatory orders placed by the Government,6 another, condemnation of facilities, including temporary use under the power of eminent domain.7 The third is applicable where it is the general economy of the country that is to be protected rather than exclusive governmental interests.8 None of these were invoked. In choosing a different and inconsistent way of his own, the President cannot claim that it is necessitated or invited by failure of Congress to legislate upon the occasions, grounds and methods for seizure of industrial properties.
345
This leaves the current seizure to be justified only by the severe tests under the third grouping, where it can be supported only by any remainder of executive power after subtraction of such powers as Congress may have over the subject. In short, we can sustain the President only by holding that seizure of such strike-bound industries is within his domain and beyond control by Congress. Thus, this Court's first review of such seizures occurs under circumstances which leave Presidential power most vulnerable to attack and in the least favorable of possible constitutional postures.
346
I did not suppose, and I am not persuaded, that history leaves it open to question, at least in the courts, that the executive branch, like the Federal Government as a whole, possesses only delegated powers. The purpose of the Constitution was not only to grant power, but to keep it from getting out of hand. However, because the President does not enjoy unmentioned powers does not mean that the mentioned ones should be narrowed by a niggardly construction. Some clauses could be made almost unworkable, as well as immutable, by refusal to indulge some latitude of interpretation for changing times. I have heretofore, and do now, give to the enumerated powers the scope and elasticity afforded by what seem to be reasonable practical implications instead of the rigidity dictated by a doctrinaire textualism.
347
The Solicitor General seeks the power of seizure in three clauses of the Executive Article, the first reading, 'The executive Power shall be vested in a President of the United States of America.' Lest I be thought to exaggerate, I quote the interpretation which his brief puts upon it: 'In our view, this clause constitutes a grant of all the executive powers of which the Government is capable.' If that be true, it is difficult to see why the forefathers bothered to add several specific items, including some trifling ones.9
348
The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image. Continental European examples were no more appealing. And if we seek instruction from our own times, we can match it only from the executive powers in those governments we disparagingly describe as totalitarian. I cannot accept the view that this clause is a grant in bulk of all conceivable executive power but regard it as an allocation to the presidential office of the generic powers thereafter stated.
349
The clause on which the Government next relies is that 'The President shall be Commander in Chief of the Army and Navy of the United States * * *.' These cryptic words have given rise to some of the most persistent controversies in our constitutional history. Of course, they imply something more than an empty title. But just what authority goes with the name has plagued Presidential advisers who would not waive or narrow it by nonassertion yet cannot say where it begins or ends. It undoubtedly puts the Nation's armed forces under Presidential command. Hence, this loose appellation is sometimes advanced as support for any Presidential action, internal or external, involving use of force, the idea being that it vests power to do anything, anywhere, that can be done with an army or navy.
350
That seems to be the logic of an argument tendered at our bar that the President having, on his own responsibility, sent American troops abroad derives from that act 'affirmative power' to seize the means of producing a supply of steel for them. To quote, 'Perhaps the most forceful illustrations of the scope of Presidential power in this connection is the fact that American troops in Korea, whose safety and effectiveness are so directly involved here, were sent to the field by an exercise of the President's constitutional powers.' Thus, it is said he has invested himself with 'war powers.'
351
I cannot foresee all that it might entail if the Court should indorse this argument. Nothing in our Constitution is plainer than that declaration of a war is entrusted only to Congress. Of course, a state of war may in fact exist without a formal declaration. But no doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation's armed forces to some foreign venture.10 I do not, however, find it necessary or appropriate to consider the legal status of the Korean enterprise to discountenance argument based on it.
352
Assuming that we are in a war de facto, whether it is or is not a war de jure, does that empower the Commander-in-Chief to seize industries he thinks necessary to supply our army? The Constitution expressly places in Congress power 'to raise and support Armies' and 'to provide and maintain a Navy.' (Emphasis supplied.) This certainly lays upon Congress primary responsibility for supplying the armed forces. Congress alone controls the raising of revenues and their appropriation and may determine in what manner and by what means they shall be spent for military and naval procurement. I suppose no one would doubt that Congress can take over war supply as a Government enterprise. On the other hand, if Congress sess fit to rely on free private enterprise collectively bargaining with free labor for support and maintenance of our armed forces can the Executive because of lawful disagreements incidental to that process, seize the facility for operation upon Government-imposed terms?
353
There are indications that the Constitution did not contemplate that the title Commander-in-Chief of the Army and Navy will constitute him also Commander-in-Chief of the country, its industries and its inhabitants. He has no monopoly of 'war powers,' whatever they are. While Congress cannot deprive the President of the command of the army and navy, only Congress can provide him an army or navy to command. It is also empowered to make rules for the 'Government and Regulation of land and naval forces,' by which it may to some unknown extent impinge upon even command functions.
354
That military powers of the Commander-in-Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history. Time out of mind, and even now in many parts of the world, a military commander can seize private housing to shelter his troops. Not so, however, in the United States, for the Third Amendment says, 'No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.' Thus, even in war time, his seizure of needed military housing must be authorized by Congress. It also was expressly left to Congress to 'provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions * * *.'11 Such a limitation on the command power, written at a time when the militia rather than a standing army was contemplated as the military weapon of the Republic, underscores the Constitution's policy that Congress, not the Executive, should control utilization of the war power as an instrument of domestic policy. Congress, fulfilling that function, has authorized the President to use the army to enforce certain civil rights.12 On the other hand, Congress has forbidden him to use the army for the purpose of executing general laws except when expressly authorized by the Constitution or by Act of Congress.13
355
While broad claims under this rubric often have been made, advice to the President in specific matters usually has carried overtones that powers, even under this head, are measured by the command functions usual to the topmost officer of the army and navy. Even then, heed has been taken of any efforts of Congress to negative his authority.14
356
We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander-in-Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward, not because of rebellion but because of a lawful economic struggle between industry and labor, it should have no such indulgence. His command power is not such an absolute as might be implied from that office in a militaristic system but is subject to limitations consistent with a constitutional Republic whose law and policy-making breanch is a representative Congress. The purpose of lodging dual titles in one man was to insure that the civilian would control the military, not to enable the military to subordinate the presidential office. No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role. What the power of command may include I do not try to envision, but I think it is not a military prerogative, without support of law, to seize persons or property because they are important or even essential for the military and naval establishment.
357
The third clause in which the Solicitor General finds seizure powers is that 'he shall take Care that the Laws be faithfully executed * * *.'15 That authority must be matched against words of the Fifth Amendment that 'No person shall be * * * deprived of life, liberty, or property, without due process of law * * *.' One gives a governmental authority that reaches so far as there is law, the other gives a private right that authority shall go no farther. These signify about all there is of the principle that ours is a government of laws, not of men, and that we submit ourselves to rulers only if under rules.
358
The Solicitor General lastly grounds support of the seizure upon nebulous, inherent powers never expressly granted but said to have accrued to the office from the customs and claims of preceding administrations. The plea is for a resulting power to deal with a crisis or an emergency according to the necessities of the case, the unarticulated assumption being that necessity knows no law.
359
Loose and irresponsible use of adjectives colors all non-legal and much legal discussion of presidential powers. 'Inherent' powers, 'implied' powers, 'incidental' powers, 'plenary' powers, 'war' powers and 'emergency' powers are used, often interchangeably and without fixed or ascertainable meanings.
360
The vagueness and generality of the clauses that set forth presidential powers afford a plausible basis for pressures within and without an administration for presidential action beyond that supported by those whose responsibility it is to defend his actions in court. The claim of inherent and unrestricted presidential powers has long been a persuasive dialectical weapon in political controversy. While it is not surprising that counsel should grasp support from such unadjudicated claims of power, a judge cannot accept self-serving press statements of the attorney for one of the interested parties as authority in answering a constitutional question, even if the advocate was himself. But prudence has counseled that actual reliance on such nebulous claims stop short of provoking a judicial test.16
361
The Solicitor General, acknowledging that Congress has never authorized the seizure here, says practice of prior Presidents has authorized it. He seeks color of legality from claimed executive precedents, chief of which is President Roosevelt's seizure of June 9, 1941, of the California plant of the North American Aviation Company. Its superficial similarities with the present case, upon analysis, yield to distinctions so decisive that it cannot be regarded as even a precedent, much less an authority for the present seizure.17
362
The appeal, however, that we declare the existence of inherent powers ex necessitate to meet an emergency asks us to do what many think would be wise, although it is something the forefathers omitted. They knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies. Aside from suspension of the privilege of the writ of habeas corpus in time of rebellion or invasion, when the public safety may require it,18 they made no express provision for exercise of extraordinary authority because of a crisis.19 I do not think we rightfully may so amend their work, and, if we could, I am not convinced it would be wise to do so, although many modern nations have forthrightly recognized that war and economic crises may upset the normal balance between liberty and authority. Their experience with emergency powers may not be irrelevant to the argument here that we should say that the Executive, of his own volition, can invest himself with undefined emergency powers.
363
Germany, after the First World War, framed the Weimar Constitution, designed to secure her liberties in the Western tradition. However, the President of the Republic, without concurrence of the Reichstag, was empowered temporarily to suspend any or all individual rights if public safety and order were seriously distrubed or endangered. This proved a temptation to every government, whatever its shade of opinion, and in 13 years suspension of rights was invoked on more than 250 occasions. Finally, Hitler persuaded President Von Hindenberg to suspend all such rights, and they were never restored.20
364
The French Republic provided for a very different kind of emergency government known as the 'state of siege.' It differed from the German emergency dictatorship, particularly in that emergency powers could not be assumed at will by the Executive but could only be granted as a parliamentary measure. And it did not, as in Germany, result in a suspension or abrogation of law but was a legal institution governed by special legal rules and terminable by parliamentary authority.21
365
Great Britain also has fought both World Wars under a sort of temporary dictatorship created by legislation.22 As Parliament is not bound by written constitutional limitations, it established a crisis government simply by delegation to its Ministers of a larger measure than usual of its own unlimited power, which is exercised under its supervision by Ministers whom it may dismiss. This has been called the 'highwater mark in the voluntary surrender of liberty,' but, as Churchill put it, 'Parliament stands custodian of these surrendered liberties, and its most sacred duty will be to restore them in their fullness when victory has crowned our exertions and our perseverance.'23 Thus, parliamentary control made emergency powers compatible with freedom.
366
This contemporary foreign experience may be inconclusive as to the wisdom of lodging emergency powers somewhere in a modern government. But it suggests that emergency powers are consistent with free government only when their control is lodged elsewhere than in the Executive who exercises them. That is the safeguard that would be nullified by our adoption of the 'inherent powers' formula. Nothing in my experience convinces me that such risks are warranted by any real necessity, although such powers would, of course, be an executive convenience.
367
In the practical working of our Government we already have evolved a technique within the framework of the Constitution by which normal executive powers may be considerably expanded to meet an emergency. Congress may and has granted extraordinary authorities which lie dormant in normal times but may be called into play by the Executive in war or upon proclamation of a national emergency. In 1939, upon congressional request, the Attorney General listed ninety-nine such separate statutory grants by Congress of emergency or war-time executive powers.24 They were invoked from time to time as need appeared. Under this procedure we retain Government by law—special, temporary law, perhaps, but law nonetheless. The public may know the extent and limitations of the powers that can be asserted, and persons affected may be informed from the statute of their rights and duties.
368
In view of the ease, expedition and safety with which Congress can grant and has granted large emergency powers, certainly ample to embrace this crisis, I am quite unimpressed with the argument that we should affirm possession of them without statute. Such power either has no beginning or it has no end. If it exists, it need submit to no legal restraint. I am not alarmed that it would plunge us straightway into dictatorship, but it is at least a step in that wrong direction.
369
As to whether there is imperative necessity for such powers, it is relevant to note the gap that exists between the President's paper powers and his real powers. The Constitution does not disclose the measure of the actual controls wielded by the modern presidential office. That instrument must be understood as an Eighteenth-Century sketch of a government hoped for, not as a blueprint of the Government that is. Vast accretions of federal power, eroded from that reserved by the States, have magnified the scope of presidential activity. Subtle shifts take place in the centers of real power that do not show on the face of the Constitution.
370
Executive power has the advantage of concentration in a single head in those choice the whole Nation has a part, making him the focus of public hopes and expectations. In drama, magnitude and finality his decisions so far overshadow any others that almost alone he fills the public eye and ear. No othe personality in public life can begin to compete with him in access to the public mind through modern methods of communications. By his prestige as head of state and his influence upon public opinion he exerts a leverage upon those who are supposed to check and balance his power which often cancels their effectiveness.
371
Moreover, rise of the party system has made a significant extraconstitutional supplement to real executive power. No appraisal of his necessities is realistic which overlooks that he heads a political system as well as a legal system. Party loyalties and interests, sometimes more binding than law, extend his effective control into branches of government other than his own and he often may win, as a political leader, what he cannot command under the Constitution. Indeed, Woodrow Wilson, commenting on the President as leader both of his party and of the Nation, observed, 'If he rightly interpret the national thought and boldly insist upon it, he is irresistible. * * * His office is anything he has the sagacity and force to make it.'25 I cannot be brought to believe that this country will suffer if the Court refuses further to aggrandize the presidential office, already so potent and so relatively immune from judicial review,26 at the expense of Congress.
372
But I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems. A crisis that challenges the President equally, or perhaps primarily, challenges Congress. If not good law, there was worldly wisdom in the maxim attributed to Napoleon that 'The tools belong to the man who can use them.' We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.
373
The essence of our free Government is 'leave to live by no man's leave, underneath the law'—to be governed by those impersonal forces which we call law. Our Government is fashioned to fulfill this concept so far as humanly possible. The Executive, except for recommendation and veto, has no legislative power. The executive action we have here originates in the individual will of the President and represents an exercise of authority without law. No one, perhaps not even the President, knows the limits of the power he may seek to exert in this instance and the parties affected cannot learn the limit of their rights. We do not know today what powers over labor or property would be claimed to flow from Government possession if we should legalize it, what rights to compensation would be claimed or recognized, or on what contingency it would end. With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.
374
Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.27
375
Mr. Justice BURTON, concurring in both the opinion and judgment of the Court.
My position may be summarized as follows:
376
The validity of the President's order of seizure is at issue and ripe for decision. Its validity turns upon its relation to the constitutional division of governmental power between Congress and the President.
377
The Constitution has delegated to Congress power to authorize action to meet a national emergency of the kind we face.1 Aware of this responsibility, Congress has responded to it. It has provided at least two procedures for the use of the President.
378
It has outlined one in the Labor Management Relations Act, 1947, better known as the Taft-Hartley Act. The accuracy with which Congress there describes the present emergency demonstrates its applicability. It says:
379
'Whenever in the opinion of the President of the United States, a threatened or actual strike or lock-out affecting an entire industry or a substantial part thereof engaged in trade, commerce, transportation, transmission, or communication among the several States or with foreign nations, or engaged in the production of goods for commerce, will, if permitted to occur or to continue, imperil the national health or safety, he may appoint a board of inquiry to inquire into the issues involved in the dispute and to make a written report to him within such time as he shall prescribe. * * *'2
380
In that situation Congress has authorized not only negotiation, conciliation and impartial inquiry but also a 60-day cooling-off period under injunction, followed by 20 days for a secret ballot upon the final offer of settlement and then by recommendations from the President to Congress.3
381
For the purposes of this case the most significant feature of that Act is its omission of authority to seize an affected industy. The debate preceding its passage demonstrated the significance of that omission. Collective bargaining, rather than governmental seizure, was to be relied upon. Seizure was not to be resorted to without specific congressional authority. Congress reserved to itself the opportunity to authorize seizure to meet particular emergencies.4
382
The President, however, chose not to use the Taft-Hartley procedure. He chose another course, also authorized by Congress. He referred the controversy to the Wage Stabilization Board.5 If that course had led to a settlement of the labor dispute, it would have avoided the need for other action. It, however, did not do so.
383
Now it is contended that although the President did not follow the procedure authorized by the Taft-Hartley Act, his substituted procedure served the same purpose and must be accepted as it equivalent. Without appraising that equivalence, it is enough to point out that neither procedure carried statutory authority for the seizure of private industries in the manner now at issue.6 The exhaustion of both procedures fails to cloud the clarity of the congressional reservation of seizure for its own consideration.
384
The foregoing circumstances distinguish this emergency from one in which Congress takes no action and outlines no governmental policy. In the case before us, Congress authorized a procedure which the President declined to follow. Instead, he followed another procedure which he hoped might eliminate the need for the first. Upon its failure, he issued an executive order to seize the steel properties in the fact of the reserved right of Congress to adopt or reject that course as a matter of legislative policy.
385
This brings us to a further crucial question. Does not President, in such a situation, have inherent constitutional power to seize private property which makes congressional action in relation thereto unnecessary? We find no such power available to him under the present circumstances. The present situation is not comparable to that of an imminent invasion or threatened attack. We do not face the issue of what might be the President's constitutional power to meet such catastrophic situations. Nor is it claimed that the current seizure is in the nature of a military command addressed by the President, as Commander-in-Chief, to a mobilized nation waging, or imminently threatened with, total war.7
386
The controlling fact here is that Congress, within its constitutionally delegated power, has prescribed for the President specific procedures, exclusive of seizure, for his use in meeting the present type of emergency. Congress has reserved to itself the right to determine where and when to authorize the seizure of property in meeting such an emergency. Under these circumstances, the President's order of April 8 invaded the jurisdiction of Congress. It violated the essence of the principle of the separation of governmental powers. Accordingly, the injunction against its effectiveness should be sustained.
387
Mr. Justice CLARK, concurring in the judgment of the Court.
388
One of this Court's first pronouncements upon the powers of the President under the Constitution was made by Chief Justice John Marshall some one hundred and fifty years ago. In Little v. Barreme,1 he used this characteristically clear language in discussing the power of the President to instruct the seizure of the 'Flying-Fish,' a vessel bound from a French port: 'It is by no means clear that the President of the United States whose high duty it is to 'take care that the laws be faithfully executed,' and who is commander in chief of the armies and navies of the United States, might not, without any special authority for that purpose, in the then existing state of things, have empowered the officers commanding the armed vessels of the United States, to seize and send into port for adjudication, American vessels which were forfeited by being engaged in this illicit commerce. But when it is observed that (an act of Congress) gives a special authority to seize on the high seas, and limits that authority to the seizure of vessels bound or sailing to a French port, the legislature seem to have prescribed that the manner in which this law shall be carried into execution, was to exclude a seizure of any vessel not bound to a French port.'2 Accordingly, a unanimous Court held that the President's instructions had been issued without authority and that they could not 'legalize an act which without those instructions would have been a plain trespass.' I know of no subsequent holding of this Court to the contrary.3
389
The limits of presidential power are obscure. However, Article II, no less than Article I, is part of 'a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.'4 Some of our Presidents, such as Lincoln, 'felt that measures otherwise unconstitutional might become lawful by becoming indispensable to the preservation of the Constitution through the preservation of the nation.'5 Others, such as Theodore Roosevelt, thought the President to be capable, as a 'steward' of the people, of exerting all power save that which is specifically prohibited by the Constitution or the Congress.6 In my view—taught me not only by the decision of Chief Justice Marshall in Little v. Barreme, 2 Cranch 170, 2 L.Ed. 243, but also by a score of other pronouncements of distinguished members of this bench—the Constitution does grant to the President extensive authority in times of grave and imperative national emergency. In fact, to my thinking, such a grant may well be necessary to the very existence of the Constitution itself. As Lincoln aptly said, '(is) it possible to lose the nation and yet preserve the Constitution?'7 In describing this authority I care not whether one calls it 'residual,' 'inherent,' 'moral, 'implied,' 'aggregate,? 'emergency,' or otherwise. I am of the conviction that those who have had the grantifying experience of being the President's lawyer have used one or more of these adjectives only with the utmost of sincerity and the highest of purpose.
390
I conclude that where Congress has laid down specific procedures to deal with the type of crisis confronting the President, he must follow those procedures in meeting the crisis; but that in the absence of such action by Congress, the President's independent power to act depends upon the gravity of the situation contronting the nation. I cannot sustain the seizure in question because here, as in Little v. Barreme, 2 Crahch 170, 2 L.Ed. 243, Congfress had prescribed methods to be followed by the President in meeting the emergency at hand.
391
Three statutory procecures were available: those provided in the Defense Production Act of 1950, 50 U.S.C.A.Appendix, § 2061 et seq., the Labor Management Relations Act, 29 U.S.C.A. § 141 et seq., and the Selective Service Act of 1948, 50 U.S.C.A.Appendix, § 451 et seq. In this case the President invoked the first of these procedures; he did not invoke the other two.
392
The Defense Production Act of 1950 provides for mediation of labor disputes affecting national defense. Under this statutory authorization, the President has established the Wage Stabilization Board. The Defense Production Act, however, grants the President no power to seize real property except through ordinary condemnation proceedings, which were not used here, and creates no sanctions for the settlement of labor disputes.
393
The Labor Management Relations Act, commonly known as the Taft-Hartley Act, includes provisions adopted for the purpose of dealing with nationwide strikes. They establish a procedure whereby the President may appoint a board of inquiry and thereafter, in proper cases, seek injunctive relief for an 80-day period against a threatened work stoppage. The President can invoke that procedure whenever, in his opinion, 'a threatened or actual strike * * * affecting an entire industry * * * will, if permitted to occur or to continue, imperil the national health or safety.'8 At the time that Act was passed, Congress specifically rejected a proposal to empower the President to seize any 'plant, mine, or facility' in which a threatened work stoppage would, in his judgment, 'imperil the public health or security.'9 Instead, the Taft-Hartley Act directed the President, in the event a strike had not been settled during the 80-day injunction period, to submit to Congress 'a full and comprehensive report * * * together with such recommendations as he may see fit to make for consideration and appropriate action.'10 The legislative history of the Act demonstrates Congress' belief that the 80-day period would afford it adequate opportunity to determine whether special legislation should be enacted to meet the emergency at hand.11
394
The Selective Service Act of 1948 gives the President specific authority to seize plants which fail to produce goods required by the armed forces or the Atomic Energy Commission for national defense purposes. The Act provides that when a producer from whom the President has ordered such goods 'refuses or fails' to fill the order within a period of time prescribed by the President, the President may take immediate possession of the producer's plant.12 This language is significantly broader than that used in the National Defense Act of 1916 and the Selective Training and Service Act of 1940, which provided for seizure when a producer 'refused' to supply essential defense materials, but not when he 'failed' to do so.13
395
These three statutes furnish the guideposts for decision in this case. Prior to seizing the steel mills on April 8 the President had exhausted the mediation procedures of the Defense Production Act through the Wage Stabilization Board. Use of those procedures had failed to avert the impending crisis; however, it had resulted in a 99-day postponement of the strike. The Government argues that this accomplished more than the maximum 80-day waiting period possible under the sanctions of the Taft-Hartley Act, and therefore amounted to compliance with the substance of that Act. Even if one were to accept this somewhat hyperbolic conclusion, the hard fact remains that neither the Defense Production Act nor Taft-Hartley authorized the seizure challenged here, and the Government made no effort to comply with the procedures established by the Selective Service Act of 1948, a statute which expressly authorizes seizures when producers fail to supply necessary defense mate riel.14
396
For these reasons I concur in the judgment of the Court. As Justice Story once said: 'For the executive department of the government, this court entertain the most entire respect; and amidst the multiplicity of cares in that department, it may, without any violation of decorum, be presumed, that sometimes there may be an inaccurate construction of a law. It is our duty to expound the laws as we find them in the records of state; and we cannot, when called upon by the citizens of the country, refuse our opinion, however it may differ from that of very great authorities.'15
397
Mr. Chief Justice VINSON, with whom Mr. Justice REED and Mr. Justice MINTON join, dissenting.
398
The President of the United States directed the Secretary of Commerce to take temporary possession of the Nation's steel mills during the existing emergency because 'a work stoppage would immediately jeopardize and imperil our national defense and the defense of those joined with us in resisting aggression, and would add to the continuing danger of our soldiers, sailors and airmen engaged in combat in the field.' The District Court ordered the mills returned to their private owners on the ground that the President's acion was beyond his powers under the Constitution.
399
This Court affirms. Some members of the Court are of the view that the President is without power to act in time of crisis in the absence of express statutory authorization. Other members of the Court affirm on the basis of their reading of certain statutes. Because we cannot agree that affirmance is proper on any ground, and because of the transcending importance of the questions presented not only in this critical litigation but also to the powers the President and of future Presidents to act in time of crisis, we are compelled to register this dissent.
I.
400
In passing upon the question of Presidential powers in this case, we must first consider the context in which those powers were exercised.
401
Those who suggest that this is a case involving extraordinary powers should be mindful that these are extraordinary times. A world not yet recovered from the devastation of World War II has been forced to face the threat of another and more terrifying global conflict.
402
Accepting in full measure its responsibility in the world community, the United States was instrumental in securing adoption of the United Nations Charter, approved by the Senate by a vote of 89 to 2. The first purpose of the United Nations is to 'maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, * * *.'1 In 1950, when the United Nations called upon member nations 'to render every assistance' to repel aggression in Korea, the United States furnished its vigorous support.2 For almost two full years, our armed forces have been fighting in Korea, suffering casualties of over 108,000 men. Hostilities have not abated. The 'determination of the United Nations to continue its action in Korea to meet the aggression' has been reaffirmend.3 Congressional support of the action in Korea has been manifested by provisions for increased military manpower and equipment and for economic stabilization, as hereinafter described.
403
Further efforts to protect the free world from aggression are found in the congressional enactments of the Truman Plan for assistance to Greece and Turkey4 and the Marshall Plan for economic aid needed to build up the strength of our friends in Western Europe.5 In 1949, the Senate approved the North Atlantic Treaty under which each member nation agrees that an armed attack against one is an armed attack against all.6 Congress immediately implemented the North Atlantic Treaty by authorizing military assistance to nations dedicated to the principles of mutual security under the United Nations Charter.7 The concept of mutual security recently has been extended by treaty to friends in the Pacific.8
404
Our treaties represent not merely legal obligations but show congressional recognition that mutual security for the free world is the best security against the threat of aggression on a global scale. The need for mutual security is shown by the very size of the armed forces outside the free world. Defendant's brief informs us that the Soviet Unin maintains the largest air force in the world and maintains g round forces much larger than those presently available to the United States and the countries joined with us in mutual security arrangements. Constant international tensions are cited to demonstrate how precarious is the peace.
405
Even this brief review of our responsibilities in the world community discloses the enormity of our undertaking. Success of these measures may, as has often been observed, dramatically influence the lives of many generations of the world's peoples yet unborn. Alert to our responsibilities, which coincide with our own self preservation through mutual security, Congress has enacted a large body of implementing legislation. As an illustration of the magnitude of the over-all program, Congress has appropriated $130 billion for our own defense and for military assistance to our allies since the June, 1950, attack in Korea.
406
In the Mutual Security Act of 1951, Congress authorized 'military, economic, and technical assistance to friendly countries to strengthen the mutual security and individual and collective defenses of the free world, * * *.'9 Over $5 1/2 billion were appropriated for military assistance for fiscal year 1952, the bulk of that amount to be devoted to purchase of military equipment.10 A request for over $7 billion for the same purpose for fiscal year 1953 is currently pending in Congress.11 In addition to direct shipment of military equipment to nations of the free world, defense production in those countries relies upon shipment of machine tools and allocation of steel tonnage from the United States.12
407
Congress also directed the President to build up our own defenses. Congress, recognizing the 'grim fact * * * that the United States is now engaged in a struggle for survival' and that 'it is imperative that we now take those necessary steps to make our strength equal to the peril of the hour,' granted authority to draft men into the armed forces.13 As a result, we now have over 3,500,000 men in our armed forces.14
408
Appropriations for the Department of Defense, which had averaged less than $13 billion per year for the three years before attack in Korea, were increased by Congress to $48 billion for fiscal year 1951 and to $60 billion for fiscal year 1952.15 A request for $51 billion for the Department of Defense for fiscal year 1953 is currently pending in Congress.16 The bulk of the increase is for military equipment and supplies—guns, tanks, ships, planes and ammunition—all of which require steel. Other defense programs requiring great quantities of steel include the large scale expansion of facilities for the Atomic Energy Commission17 and the expansion of the Nation's productive capacity affirmatively encouraged by Congress.18
409
Congress recognized the impact of these defense programs upon the economy. Following the attack in Korea, the President asked for authority to requisition property and to allocate and fix priorities for scarce goods. In the Defense Production Act of 1950, Congress granted the powers requested and, in addition, granted power to stabilize prices and wages and to provide for settlement of labor disputes arising in the defense program.19 The Defense Production Act was extended in 1951, a Senate Committee noting that in the dislocation caused by the programs for purchase of military equipment 'lies the seed of an economic disaster that might well destroy the military might we are straining to build.'20 Significantly, the Committee examined the problem 'in terms of just one commodity, steel,' and found 'a graphic picture of the over-all inflationary danger growing out of reduced civilian supplies and rising incomes.' Even before Korea, steel production at levels above theoretical 100% capacity was not capable of supplying civilian needs alone. Since Korea, the tremendous military demand for steel has far exceeded the increases in productive capacity. This Committee emphasized that the shortage of steel, even with the mills operating at full capacity, coupled with increased civilian purchasing power, presented grave danger of disastrous inflation.21
410
The President has the duty to execute the foregoing legislative programs. Their successful execution depends upon continued production of steel and stabilized prices for steel. Accordingly, when the collective bargaining agreements between the Nation's steel producers and their employees, represented by the United Steel Workers, were due to expire on December 31, 1951, and a strike shutting down the entire basic steel industry was threatened, the President acted to avert a complete shutdown of steel production. On December 22, 1951, he certified the dispute to the Wage Stabilization Board, requesting that the Board investigate the dispute and promptly report its recommendation as to fair and equitable terms of settlement. The Union complied with the President's request and delayed its threatened strike while the dispute was before the Board. After a special Board panel had conducted hearings and submitted a report, the full Wage Stabilization Board submitted its report and recommendations to the President on March 20, 1952.
411
The Board's report was acceptable to the Union but was rejected by plaintiffs. The Union gave notice of its intention to strike as of 12:01 a.m., April 9, 1952, but bargaining between the parties continued with hope of settlement until the evening of April 8, 1952. After bargaining had failed to avert the threatened shutdown of steel production, the President issued the following Executive Order:
412
'Whereas on December 16, 1950, I proclaimed the existence of a national emergency which requires that the military, naval, air, and civilian defenses of this country be strengthened as speedily as possible to the end that we may be able to repel any and all threats against our national security and to fulfill our responsibilities in the efforts being made throughout the United Nations and otherwise to bring about a lasting peace; and
413
'Whereas American fighting men and fighting men of other nations of the United Nations are now engaged in deadly combat with the forces of aggression in Korea, and forces of the United States are stationed elsewhere overseas for the purpose of participating in the defense of the Atlantic Community against aggression; and
414
'Whereas the weapons and other materials needed by our armed forces and by those joined with us in the defense of the free world are produced to a great extent in this country, and steel is an indispensable component of substantially all of such weapons and materials; and 'Whereas steel is likewise indispenable to the carrying out of programs of the Atomic Energy Comm ission of vital importance to our defense efforts; and
415
'Whereas a continuing and uninterrupted supply of steel is also indispensable to the maintenance of the economy of the United States, upon which our military strength depends; and
416
'Whereas a controversy has arisen between certain companies in the United States producing and fabricating steel and the elements thereof and certain of their workers represented by the United Steel Workers of America, CIO, regarding terms and conditions of employment; and
417
'Whereas the controversy has not been settled through the processes of collective bargaining or through the efforts of the Government, including those of the Wage Stabilization Board, to which the controversy was referred on December 22, 1951, pursuant to Executive Order No. 10233, and a strike has been called for 12:01 A.M., April 9, 1952; and
418
'Whereas a work stoppage would immediately jeopardize and imperil our national defense and the defense of those joined with us in resisting aggression, and would add to the continuing danger of our soldiers, sailors, and airmen engaged in combat in the field; and
419
'Whereas in order to assure the continued availability of steel and steel products during the existing emergency, it is necessary that the United States take possession of and operate the plants, facilities, and other property of the said companies as hereinafter provided:
420
'Now, Therefore, by virtue of the authority vested in me by the Constitution and laws of the United States, and as President of the United States and Commander in Chief of the armed forces of the United States, it is hereby ordered as follows:
421
'1. The Secretary of Commerce is hereby authorized and directed to take possession of all or such of the plants, facilities, and other property of the companies named in the list attached hereto, or any part thereof, as he may deem necessary in the interests of national defense; and to operate or to arrange for the operation thereof and to do all things necessary for, or incidental to, such operation * * *.'22
422
The next morning, April 9, 1952, the President addressed the following Message to Congress:
423
'To the Congress of the United States:
424
'The Congress is undoubtedly aware of the recent events which have taken place in connection with the management-labor dispute in the steel industry. These events culminated in the action which was taken last night to provide for temporary operation of the steel mills by the Government.
425
'I took this action with the utmost reluctance. The idea of Government operation of the steel mills is thoroughly distasteful to me and I want to see it ended as soon as possible. However, in the situation which confronted me yesterday, I felt that I could make no other choice. The other alternatives appeared to be even worse—so much worse that I could not accept them.
426
'One alternative would have been to permit a shut-down in the steel industry. The effects of such a shut-down would have been so immediate and damaging with respect to our efforts to support our Armed Forces and to protect our national security that it made this alternative unthinkable.
427
'The only way that I know of, other than Government operation, by which a steel shut-down could have been avoided was to grant the demands of the steel industry for a large price increase. I believed and the officials in charge of our stabilization agencies believed that this would have wrecked our stabilization program. I was unwilling to accept the incalculable damage which might be done to our country by following such a course.
428
'Accordingly, it was my judgment that Government operation of the steel mills for a temporary period was the least undesirable of the courses of action which lay open. In the circumstances, I believed it to be, and now believe it to be, my duty and within my powers as President to follow that courseof action.
429
'It may be that the Congress will deem some othe r course to be wiser. It may be that the Congress will feel we should give in to the demands of the steel industry for an exorbitant price increase and take the consequences so far as resulting inflation is concerned.
430
'It may be that the Congress will feel the Government should try to force the steel workers to continue to work for the steel companies for another long period, without a contract, even though the steel workers have already voluntarily remained at work without a contract for 100 days in an effort to reach an orderly settlement of their differences with management.
431
'It may even be that the Congress will feel that we should permit a shutdown of the steel industry, although that would immediately endanger the safety of our fighting forces abroad and weaken the whole structure of our national security.
432
'I do not believe the Congress will favor any of these courses of action, but that is a matter for the Congress to determine.
433
'It may be, on the other hand, that the Congress will wish to pass legislation establishing specific terms and conditions with reference to the operation of the steel mills by the Government. Sound legislation of this character might be very desirable.
434
'On the basis of the facts that are known to me at this time, I do not believe that immediate congressional action is essential; but I would, of course, be glad to cooperate in developing any legislative proposals which the Congress may wish to consider.
435
'If the Congress does not deem it necessary to act at this time, I shall continue to do all that is within my power to keep the steel industry operating and at the same time make every effort to bring about a settlement of the dispute so the mills can be returned to their private owners as soon as possible.'23
436
Twelve days passed without action by Congress. On April 21, 1952, the President sent a letter to the President of the Senate in which he again described the purpose and need for his action and again stated his position that 'The Congress can, if it wishes, reject the course of action I have followed in this matter.'24 Congress has not so acted to this date.
437
Meanwhile, plaintiffs instituted this action in the District Court to compel defendant to return possession of the steel mills seized under Executive Order 10340. In this litigation for return of plaintiffs' properties, we assume that defendant Charles Sawyer is not immune from judicial restraint and that plaintiffs are entitled to equitable relief if we find that the Executive Order under which defendant acts is unconstitutional. We also assume without deciding that the courts may go behind a President'sfinding of fact that an emergency exists. But there is not the slightest basis for suggesting that the President's finding in this case can be undermined. Plaintiffs moved for a preliminary injunction before answer or hearing. Defendant opposed the motion, filing uncontroverted affidavits of Government officials describing the facts underlying the President's order.
438
Secretary of Defense Lovett swore that 'a work stoppage in the steel industry will result immediately in serious curtailment of production of essential weapons and munitions of all kinds.' He illustrated by showing that 84% of the national production of certain alloy steel is currently used for production of military-end items and that 35% of total production of another form of steel goes into ammunition, 80% of such ammunition now going to Korea. The Secretary of Defense stated that: 'We are holding the line (in Korea) with ammunition and not with the lives of our troops.'
439
Affidavits of the Chairman of the Atomic Energy Commission, the Secretary of the Interior, defendant as Secretary of Commerce, and the Administrators of the Defense Production Administration, the National Production Authority, the General Servies Administration and the Defense Transport Administration wer e also filed in the District Court. These affidavits disclose an enormous demand for steel in such vital defense programs as the expansion of facilities in atomic energy, petroleum, power, transportation and industrial production, including steel production. Those charged with administering allocations and priorities swore to the vital part steel production plays in our economy. The affidavits emphasize the critical need for steel in our defense program, the absence of appreciable inventories of steel, and the drastic results of any interruption in steel production.
440
One is not here called upon even to consider the possibility of executive seizure of a farm, a corner grocery store or even a single industrial plant. Such considerations arise only when one ignores the central fact of this case—that the Nation's entire basic steel production would have shut down completely if there had been no Government seizure. Even ignoring for the moment whatever confidential information the President may possess as 'the Nation's organ for foreign affairs,'25 the uncontroverted affidavits in this record amply support the finding that 'a work stoppage would immediately jeopardize and imperil our national defense.'
441
Plaintiffs do not remotely suggest any basis for rejecting the President's finding that any stoppage of steel production would immediately place the Nation in peril. Moreover, even self-generated doubts that any stoppage of steel production constitutes an emergency are of little comfort here. The Union and the plaintiffs bargained for 6 months with over 100 issues in dispute—issues not limited to wage demands but including the union shop and other matters of principle between the parties. At the time of seizure there was not, and there is not now, the slightest evidence to justify the belief that any strike will be of short duration. The Union and the steel companies may well engage in a lengthy struggle. Plaintiff's counsel tells us that 'sooner or later' the mills will operate again. That May satisfy the steel companies and, perhaps, the Union. But our soldiers and our allies will hardly be cheered with the assurance that the ammunition upon which their lives depend will be forthcoming—'sooner or later,' or, in other words, 'too little and too late.' Accordingly, if the President has any power under the Constitution to meet a critical situation in the absence of express statutory authorization, there is no basis whatever for criticizing the exercise of such power in this case.
II.
442
The steel mills were seized for a public use. The power of eminent domain, invoked in that case, is an essential attribute of sovereignty and has long been recognized as a power of the Federal Government. Kohl v. United States, 1876, 91 U.S. 367, 23 L.Ed. 449. Plaintiffs cannot complain that any provision in the Constitution prohibits the exercise of the power of eminent domain in this case. The Fifth Amendment provides: 'nor shall private property be taken for public use, without just compensation.' It is no bar to this seizure for, if the taking is not otherwise unlawful, plaintiffs are assured of receiving the required just compensation. United States v. Pewee Coal Co., 1951, 341 U.S. 114, 71 S.Ct. 670, 95 L.Ed. 809.
443
Admitting that the Government could seize the mills, plaintiffs claim that the implied power of eminent domain can be exercised only under an Act of Congress; under no circumstances, they say, can that power be exercised by the President unless he can point to an express provision in enabling legislation. This was the view adopted by the District Judge when he granted the preliminary injunction. Without an answer, without hearing evidence, he determined the issue on the basis of his 'fixed conclusion * * * that defendant's acts are illegal' because the President's only course in the face of an emergency is to pr esent the matter to Congress and await the final passage of legislation which will enable the Government to cope with threatened disaster.
444
Under this view, the President is left powerless at the very moment when the need for action may be most pressing and when no one, other than he, is immediately capable of action. Under this view, he is left powerless because a power not expressly given to Congress is nevertheless found to rest exclusively with Congress.
445
Consideration of this view of executive impotence calls for further examination of the nature of the separation of powers under our tripartite system of Government.
The Constitution provides:
446
Art. I,
447
Section 1. 'All legislative Powers herein granted shall be vested in a Congress of the United States, * * *.'
448
Art. II,
449
Section 1. 'The executive Power shall be vested in a President of the United States of America. * * *.'
450
Section 2. 'The President shall be Commander in Chief of the Army and Navy of the United States, * * *
451
'He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; * * *.'
452
Section 3. 'He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; * * * he shall take Care that the Laws be faithfully executed, * * *.'
453
Art. III,
454
Section 1. 'The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.'
455
The whole of the 'executive Power' is vested in the President. Before entering office, the President swears that he 'will faithfully execute the Office of President of the United States, and will to the best of (his) Ability, preserve, protect and defend the Constitution of the United States.' Art. II, § 1.
456
This comprehensive grant of the executive power to a single person was bestowed soon after the country had thrown the yoke of monarchy. Only by instilling initiative and vigor in all of the three departments of Government, declared Madison, could tyranny in any from be avoided.26 Hamilton added: 'Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attack; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and highhanded combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy.'27 It is thus apparent that the Presidency was deliberately fashioned as an office of power and independence. Of course, the Framers created no autocrat capable of arrogating any power unto himself at any time. But neither did they create an automaton impotent to exercise the powers of Government at a time when the survival of the Republic itself may be at stake.
457
In passing upon the grave constitutional question presented in this case, we must never forget, as Chief Justice Marshall admonished, that the Constitution is 'intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs,' and that '(i)ts means are adequate to its ends.'28 Cases do arise presenting questions which could not have been foreseen by the Framers. In such cases, the Constitution has been treated as a living document adaptable to new situations.29 But we are not called upon today to expand the Constitution to meet a new situation. For, in this case, we need only look to history and time-honored principles of constitutional law—principles that have been applied consistently by all branches of the Government thrughout our history. It is those who assert the invalidity of t he Executive Order who seek to amend the Constitution in this case.
III.
458
A review of executive action demonstrates that our Presidents have on many occasions exhibited the leadership contemplated by the Framers when they made the President Commander in Chief, and imposed upon him the trust to 'take Care that the Laws be faithfully executed.' With or without explicit statutory authorization, Presidents have at such times dealt with national emergencies by acting promptly and resolutely to enforce legislative programs, at least to save those programs until Congress could act. Congress and the courts have responded to such executive initiative with consistent approval.
459
Our first President displayed at once the leadership contemplated by the Framers. When the national revenue laws were openly flouted in some sections of Pennsylvania, President Washington, without waiting for a call from the state government, summoned the militia and took decisive steps to secure the faithful execution of the laws.30 When international disputes engendered by the French revolution threatened to involve this country in war, and while congressional policy remained undertain, Washington issued his Proclamation of Neutrality. Hamilton, whose defense of the Proclamation has endured the test of time, invoked the argument that the Executive has the duty to do that which will preserve peace until Congress acts and, in addition, pointed to the need for keeping the Nation informed of the requirements of existing laws and treaties as part of the faithful execution of the laws.31
460
President John Adams issued a warrant for the arrest of Jonathan Robbins in order to execute the extradition provisions of a treaty. This action was challenged in Congress on the ground that no specific statute prescribed the method to be used in executing the treaty. John Marshall, then a member of the House of Representatives, made the following argument in support of the President's action:
461
'The treaty, which is a law, enjoins the performance of a particular object. The person who is to perform this object is marked out by the Constitution, since the person is named who conducts the foreign intercourse, and is to take care that the laws be faithfully executed. The means by which it is to be performed, the force of the nation, are in the hands of this person. Ought not this person to perform the object, although the particular mode of using the means has not been prescribed? Congress, unquestionably may prescribe the mode, and Congress may devolve on others the whole execution of the contract; but, till this be done, it seems the duty of the Executive department to execute the contract by any means it possesses.'32
462
Efforts in Congress to discredit the President for his action failed.33 Almost a century later, this Court had occasion to give its express approval to 'the masterly and conclusive argument of John Marshall.'34
463
Jefferson's initiative in the Louisiana Purchase, the Monroe Doctrine, and Jackson's removal of Government deposits from the Bank of the United States further serve to demonstrate by deed what the Framers described by word when they vested the whole of the executive power in the President.
464
Without declaration of war, President Lincoln took energetic action with the outreak of the War Between the States. He summoned troops and pai d them out of the Treasury without appropriation therefor. He proclaimed a naval blockade of the Confederacy and seized ships violating that blockade. Congress, far from denying the validity of these acts, gave them express approval. The most striking action of President Lincoln was the Emancipation Proclamation, issued in aid of the successful prosecution of the War Between the States, but wholly without statutory authority.35
465
In an action furnishing a most apt precedent for this case, President Lincoln without statutory authority directed the seizure of rail and telegraph lines leading to Washington.36 Many months later, Congress recognized and confirmed the power of the President to seize railroads and telegraph lines and provided criminal penalties for interference with Government operation.37 This Act did not confer on the President any additional powers of seizure. Congress plainly rejected the view that the President's acts had been without legal sanction until ratified by the legislature. Sponsors of the bill declared that its purpose was only to confirm the power which the President already possessed.38 Opponents insisted a statute authorizing seizure was unnecessary and might even be construed as limiting existing Presidential powers.39
466
Other seizures of private property occurred during the War Between the States, just as they had occurred during previous wars.40 In United States v. Russell, 1872, 13 Wall. 623, 20 L.Ed. 624, three river steamers were seized by Army Quartermasters on the ground of 'imperative military necessity.' This Court affirmed an award of compensation, stating:
467
'Extraordinary and unforeseen occasions arise, however, beyond all doubt, in cases of extreme necessity in time of war or of immediate and impending public danger, in which private property may be impressed into the public service, or may be seized and appropriated to the public use, or may even be destroyed without the consent of the owner.'
468
'Exigencies of the kind do arise in time of war or impending public danger, but it is the emergency, as was said by a great magistrate, that gives the right, and it is clear that the emergency must be shown to exist before the taking can be justified. Such a justification may be shown, and when shown the rule is well settled that the officer taking private property for such a purpose, if the emergency is fully proved, is not a trespasser, and that the government is bound to make full compensation to the owner.'41
469
In Re Neagle, 1890, 135 U.S. 1, 10 S.Ct. 658, 4 L.Ed. 55, this Court held that a federal officer had acted i n line of duty when he was guarding a Justice of this Court riding circuit. It was conceded that there was no specific statute authorizing the President to assign such a guard. In holding that such a statute was not necessary, the Court broadly stated the question as follows:
470
'(The President) is enabled to fulfill the duty of his great department, expressed in the phrase that 'he shall take care that the laws be faithfully executed.'
471
'Is this duty limited to the enforcement of acts of Congress or of treaties of the United States according to their express terms, or does it include the rights, duties and obligations growing out of the Constitution itself, our international relations, and all the protection implied by the nature of the government under the Constitution?'42
472
The latter approach was emphatically adopted by the Court.
473
President Hayes authorized the widespread use of federal troops during the Railroad Strike of 1877.43 President Cleveland also used the troops in the Pullman Strike of 1895 and his action is of special significance. No statute authorized this action. No call for help had issued from the Governor of Illinois; indeed Governor Altgeld disclaimed the need for supplemental forces. But the President's concern was that federal laws relating to the free flow of interstate commerce and the mails be continuously and faithfully executed without interruption.44 To further this aim his agents sought and obtained the injunction upheld by this Court in In re Debs, 1895, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092. The Court scrutinized each of the steps taken by the President to insure execution of the 'mass of legislation' dealing with commerce and the mails and gave his conduct full approval. Congress likewise took note of this use of Presidential power to forestall apparent obstacles to the faithful execution of the laws. By separate resolutions, both the Senate and the House commended the Executive's action.45
474
President Theodore Roosevelt seriously contemplated seizure of Pennsylvania coal mines if a coal shortage necessitated such action.46 In his autobiography, President Roosevelt expounded the 'Stewardship Theory' of Presidential power, stating that 'the executive is subject only to the people, and, under the Constitution, bound to serve the people affirmatively in cases where the Constitution does not explicitly forbid him to render the service.'47 Because the contemplated seizure of the coal mines was based on this theory, then ex-President Taft criticized President Roosevelt in a passage in his book relied upon by the District Court in this case. Taft, Our Chief Magistrate and His Powers (1915), 139—147. In the same book, however, President Taft agreed that such powers of the President as the duty 'to take care that the laws be faithfully executed' could not be confined to 'express Congressional statutes.' In re Neagle, supra, and In re Debs, supra, were cited as conforming with Taft's concept of the office, id., at pp. 88—94, as they were later to be cited with approval in his opinion as Chief Justice in Myers v. United States, 1926, 272 U.S. 52, 133, 47 S.Ct. 21, 31, 71 L.Ed. 160.48
475
In 1909, President Taft was informed that government owned oil lands were being patented by private parties at such a rate tht public oil lands would be depleted in a matter of months. Al though Congress had explicitly provided that these lands were open to purchase by United States citizens, 29 Stat. 526 (1897), the President nevertheless ordered the lands withdrawn from sale '(i)n aid of proposed legislation.' In United States v. Midwest Oil Co., 1915, 236 U.S. 459, 35 S.Ct. 309, 59 L.Ed. 673, the President's action was sustained as consistent with executive practice throughout our history. An excellent brief was filed in the case by the Solicitor General, Mr. John W. Davis, together with Assistant Attorney General Knaebel, later Reporter for this Court. In this brief, the situation confronting President Taft was described as 'an emergency; there was no time to wait for the action of Congress.' The brief then discusses the powers of the President under the Constitution in such a case:
476
'Ours is a self-sufficient Government within its sphere. (Ex parte Siebold, 100 U.S. 371, 395 (25 L.Ed. 717); In re Debs, 158 U.S. 564, 578 (15 S.Ct. 900, 39 L.Ed. 1092).) 'Its means are adequate to its ends' (McCulloch v. (State of) Maryland, 4 Wheat. 316, 424 (4 L.Ed. 579)), and it is rational to assume that its active forces will be found equal in most things to the emergencies that confront it. While perfect flexibility is not to be expected in a Government of divided powers, and while division of power is one of the principal features of the Constitution, it is the plain duty of those who are called upon to draw the dividing lines to ascertain the essential, recognize the practical, and avoid a slavish formalism which can only serve to ossify the Government and reduce its efficiency without any compensating good. The function of making laws is peculiar to Congress, and the Executive can not exercise that function to any degree. But this is not to say that all of the subjects concerning which laws might be made are perforce removed from the possibility of Executive influence. The Executive may act upon things and upon men in many relations which have not, though they might have, been actually regulated by Congress. In other words, just as there are fields which are peculiar to Congress and fields which are peculiar to the Executive, so there are fields which are common to both, in the sense that the Executive may move within them until they shall have been occupied by legislative action. These are not the fields of legislative prerogative, but fields within which the lawmaking power may enter and dominate whenever it chooses. This situation results from the fact that the President is the active agent, not of Congress, but of the Nation. As such he performs the duties which the Constitution lays upon him immediately, and as such, also, he executes the laws and regulations adopted by Congress. He is the agent of the people of the United States, deriving all his powers from them and responsible directly to them. In no sense is he the agent of Congress. He obeys and executes the laws of Congress, not because Congress is enthroned in authority over him, but because the Constitution directs him to do so.
477
'Therefore it follows that in ways short of making laws or disobeying them, the Executive may be under a grave constitutional duty to act for the national protection in situations not covered by the acts of Congress, and in which, even, it may not be said that his action is the direct expression of any particular one of the independent powers which are granted to him specifically by the Constitution. Instances wherein the President has felt and fulfilled such a duty have not been rare in our history, though, being for the public benefit and approved by all, his acts have seldom been challenged in the courts. We are able, however, to present a number of apposite cases which were subjected to judicial inquiry.'
478
The brief then quotes from such cases as In re Debs, supra, and In re Neagle, supra, and continues:
479
'As we understand the doctrine of the Neagle case, and the cases therein citd, it is clearly this: The Executive is authorized to exert th e power of the United States when he finds this necessary for the protection of the agencies, the instrumentalities, or the property of the Government. This does not mean an authority to disregard the wishes of Congress on the subject, when that subject lies within its control and when those wishes have been expressed, and it certainly does not involve the slightest semblance of a power to legislate, much less to 'suspend' legislation already passed by Congress. It involves the performance of specific acts, not of a legislative but purely of an executive character—acts which are not in themselves laws, but which presuppose a 'law' authorizing him to perform them. This law is not expressed, either in the Constitution or in the enactments of Congress, but reason and necessity compel that it be implied from the exigencies of the situation.
480
'In none of the cases which we have mentioned, nor in the cases cited in the extracts taken from the Neagle case, was it possible to say that the action of the President was directed, expressly or impliedly, by Congress. The situations dealt with had never been covered by any act of Congress, and there was no ground whatever for a contention that the possibility of their occurrence had ever been specifically considered by the legislative mind. In none of those cases did the action of the President amount merely to the execution of some specific law.
481
'Neither does any of them stand apart in principle from the case at bar, as involving the exercise of specific constitutional powers of the President in a degree in which this case does not involve them. Taken collectively, the provisions of the Constitution which designate the President as the official who must represent us in foreign relations, in commanding the Army and Navy, in keeping Congress informed of the state of the Union, in insuring the faithful execution of the laws and in recommending new ones, considered in connection with the sweeping declaration that the executive power shall be vested in him, completely demonstrate that his is the watchful eye, the active hand, the overseeing dynamic force of the United States.'49
482
This brief is valuable not alone because of the caliber of its authors but because it lays bare in succinct reasoning the basis of the executive practice which this Court approved in the Midwest Oil case.
483
During World War I, President Wilson established a War Labor Board without awaiting specific direction by Congress.50 With William Howard Taft and Frank P. Walsh as co-chairmen, the Board had as its purpose the prevention of strikes and lockouts interfering with the production of goods needed to meet the emergency. Effectiveness of War Labor Board decision was accomplished by Presidental action, including seizure of industrial plants.51 Seizure of the Nation's railroads was also ordered by President Wilson.52
484
Beginning with the Bank Holiday Proclamation53 and continuing through World War II, executive leadership and intiative were characteristic of President Franklin D. Roosevelt's administration. In 1939, upon the outbreak of war in Europe, the President proclaimed a limited national emergency for the purpose of strengthening our national defense.54 By May of 1941, the danger from the Axis belligerents having become clear, the President proclaimed 'an unlimited national emergency' calling for mobilization of the Nation's defenses to repel aggression.55 The President took the initiative in strengthening our defenses by acquiring rights from the British Government to establish air bases in exchange for overage destroyers.56
485
In 1941, President Roosevelt acted to protect Iceland from attack by Axis powers when British forces were withdrawn by sending our forces to occupy Iceland. Congress was informed of this action on the same day that our forces reached Iceland.57 The occupation of Iceland was but one of 'at least 125 incidents' in our history in which Presidents, 'without Congressinal authorization, and in the absence of a declaration of war, (have) ordered the Armed Forces to take action or maintain positions abroad.'58
486
Some six months before Pearl Harbor, a dispute at a single aviation plant at Inglewood, California, interrupted a segment of the production of military aircraft. In spite of the comparative insignificance of this work stoppage to total defense production as contrasted with the complete paralysis now threatened by a shutdown of the entire basic steel industry, and even though our armed forces were not then engaged in combat, President Roosevelt ordered the seizure of the plant 'pursuant to the powers vested in (him) by the Constitution and laws of the United States, as President of the United States of America and Commander in Chief of the Army and Navy of the United States.'59 The Attorney General (Jackson) vigorously proclaimed that the President had the moral duty to keep this Nation's defense effort a 'going concern.' His ringing moral justification was coupled with a legal justification equally well stated:
487
'The Presidential proclamation rests upon the aggregate of the Presidential powers derived from the Constitution itself and from statutes enacted by the Congress.
488
'The Constitution lays upon the President the duty 'to take care that the laws be faithfully executed.' Among the laws which he is required to find means to execute are those which direct him to equip an enlarged army, to provide for a strengthened navy, to protect Government property, to protect those who are engaged in carrying out the business of the Government, and to carry out the provisions of the Lend-Lease Act (22 U.S.C.A. § 411 et seq.). For the faithful execution of such laws the President has back of him not only each general law-enforcement power conferred by the various acts of Congress but the aggregate of all such laws plus that wide discretion as to method vested in him by the Constitution for the purpose of executing the laws.
489
'The Constititution als places on the President the responsibility and vests in him t he powers of Commander in Chief of the Army and of the Navy. These weapons for the protection of the continued existence of the Nation are placed in his sole command and the implication is clear that he should not allow them to become paralyzed by failure to obtain supplies for which Congress has appropriated the money and which it has directed the President to obtain.'60
490
At this time, Senator Connally proposed amending the Selective Service and Training Act to authorize the President to seize any plant where an interruption of production would unduly impede the defense effort.61 Proponents of the measure in no way implied that the legislation would add to the powers already possessed by the President62 and the amendment was opposed as unnecessary since the President already had the power.63 The amendment relating to plant seizures was not approved at that session of Congress.64
491
Meanwhile, and also prior to Pearl Harbor, the President ordered the seizure of a shipbuilding company and an aircraft parts plant.65 Following the declaration of war, but prior to the Smith-Connally Act of 1943, five additional industrial concerns were seized to avert interruption of needed production.66 During the same period, the President directed seizure of the Nation's coal mines to remove an obstruction to the effective prosecution of the war.67
492
The procedures adopted by President Roosevelt closely resembled the methods employed by President Wilson. A National War Labor Board, like its predecessor of World War I, was created by Executive Order to deal effectively and fairly with disputes affecting defense production.68 Seizures were considered necessary, upon disobedience of War Labor Board orders, to assure that the mobilization effort remained a 'going concern,' and to enforce the economic stabilization program.
493
At the time of the seizure of the coal mines, Senator Connally's bill to provide a statutory basis for seizures and for the War Labor Board was again before Congress. As stated by its sponsor, the purpose of the bill was not to augment Presidential power, but to 'let the country know that the Congress is squarely behind the President.'69 As in the case of the legislative recognition of President Lincoln's power to seize, Congress again recognized that the President already had the necessary power, for there was no intention to 'ratify' past actions of doubtful validity. Indeed, when Senator Tydings offered an amendment to the Connally bill expressly to confirm and validate the seizure of the coal mines, sponsors of the bill opposed the amendment as casting doubt on the legality of the seizure and the amendmentwas defeated.70 When the Connally bill, S. 796, came befo re the House, all parts after the enacting clause were stricken and a bill introduced by Representative Smith of Virginia was substituted and passed. This action in the House is significant because the Smith bill did not contain the provisions authorizing seizure by the President but did contain provisions controlling and regulating activities in respect to properties seized by the Government under statute 'or otherwise.'71 After a conference, the seizure provisions of the Connally bill, enacted as the Smith-Connally or War Labor Disputes Act of 1943, 57 Stat. 163, were agreed to by the House.
494
Following passage of the Smith-Connally Act, seizures to assure continued production on the basis of terms recommended by the War Labor Board were based upon that Act as well as upon the President's power under the Constitution and the laws generally. A question did arise as to whether the statutory language relating to 'any plant, mine, or facility equipped for the manufacture, production, or mining of any articles or materials'72 authorized the seizure of properties of Montgomery Ward & Co., a retail department store and mail order concern. The Attorney General (Biddle) issued an opinion that the President possessed the power to seize Montgomery Ward properties to prevent a work stoppage whether or not the terms of the Smith-Connally Act authorized such a seizure.73 This opinion was in line with the views on Presidential powers maintained by the Attorney General's predecessors (Murphy74 and Jackson75) and his successor (Clark76). Accordingly, the President ordered seizure of the Chicago properties of Montgomery Ward in April, 1944, when that company refused to obey a War Labor Board order concerning the bargaining represenative of its employees in Chicago.77 In Congress, a Select Commitee to Investigate Seizure of the Property of Montgomery Ward & Co., assuming that the terms of the Smith-Connally Act did not cover this seizure, concluded that the seizure 'was not only within the Constitutional power but was the plain duty of the President.'78 Thereafter, an election determined the bargaining representative for the Chicago employees and the properties were returned to Montgomery Ward & Co. In December, 1944, after continued defiance of a series of War Labor Board orders, President Roosevelt ordered the seizure of Montgomery Ward properties throughout the country.79 The Court of Appeals for the Seventh Circuit upheld this seizure on statutory grounds and also indicated its disapproval of a lower court's denial of seizure power apart from express statute.80
495
More recently,President Truman acted to repel aggression by employing our ar med forces in Korea.81 Upon the intervention of the Chinese Communists, the President proclaimed the existence of an unlimited national emergency requiring the speedy build-up of our defense establishment.82 Congress responded by providing for increased manpower and weapons for our own armed forces, by increasing military aid under the Mutual Security Program and by enacting economic stabilization measures, as previously described.
496
This is but a cursory summary of executive leadership. But it amply demonstrates that Presidents have taken prompt action to enforce the laws and protect the country whether or not Congress happened to provide in advance for the particular method of execution. At the minimum, the executive actions reviewed herein sustain the action of the President in this case. And many of the cited examples of Presidential practice go far beyond the extent of power necessary to sustain the President's order to seize the steel mills. The fact that temporary executive seizures of industrial plants to meet an emergency have not been directly tested in this Court furnishes not the slightest suggestion that such actions have been illegal. Rather, the fact that Congress and the courts have consistently recognized and given their support to such executive action indicates that such a power of seizure has been accepted throughout our history.
497
History bears out the genius of the Founding Fathers, who created a Government subject to law but not left subject to inertia when vigor and initiative are required.
IV.
498
Focusing now on the situation confronting the President on the night of April 8, 1952, we cannot but conclude that the President was performing his duty under the Constitution to 'take Care that the Laws be faithfully executed'—a duty described by President Benjamin Harrison as 'the central idea of the office.'83
499
The President reported to Congress the morning after the seizure that he acted because a work stoppage in steel production would immediately imperil the safety of the Nation by preventing execution of the legislative programs for procurement of military equipment. And, while a shutdown could be averted by granting the price concessions requested by plaintiffs, granting such concessions would disrupt the price stabilization program also enacted by Congress. Rather than fail to execute either legislative program, the President acted to execute both.
500
Much of the argument in this case has been directed at straw men. We do not now have before us the case of a President acting solely on the basis of his own notions of the public welfare. Nor is there any question of unlimited executive power in this case. The President himself closed the door to any such claim when he sent his Message to Congress stating his purpose to abide by any action of Congress, whether approving or disapproving his seizure action. Here, the President immediately made sure that Congress was fully informed of the temporary action he had taken only to preserve the legislative programs from destruction until Congress could act.
501
The absence of a specific statute authorizing seizure of the steel mills as a mode of executing the laws—both the military procurement program and the anti-inflation program—has not until today been thought to prevent the President from executing the laws. Unlike an administrative commission confined to the enforcement of the statute under which it was created, or the head to a department when administering a particular statute, the President is a constitutional officer charged with taking care that a 'mass of legislation' be executed. Flexibility as to mode of execution to meet critical situations is a matter of practical necessity. This practical construction of the 'Take Care' clause, adocated by John Marshall, was adopted by this Court in In re Neagle, In re Debs and other cases cited supra. See also Ex parte Quirin, 1942, 317 U.S. 1, 26, 63 S.Ct. 2, 10, 87 L.Ed. 3. Although more restrictive views of executive power, advocated in dissenting opinions of Justices Holmes, McReynolds and Brandeis, were emphatically rejected by this Court in Myers v. United States, supra, members of today's majority treat these dissenting views as authoritative.
502
There is no statute prohibiting seizure as a method of enforcing legislative programs. Congress has in no wise indicated that its legislation is not to be executed by the taking of private property (subject of course to the payment of just compensation) if its legislation cannot otherwise be executed. Indeed, the Universal Military Training and Service Act authorizes the seizure of any plant that fails to fill a Government contract84 or the properties of any steel producer that fails to allocate steel as directed for defense production.85 And the Defense Production Act authorizes the President to requisition equipment and condemn real property needed without delay in the defense effort.86 Where Congress authorizes seizure in instances not necessarily crucial to the defense program, it can hardly be said to have disclosed an intention to prohibit seizures where essential to the execution of that legislative program.
503
Whatever the extent of Presidential power on more tranquil occasions, and whatever the right of the President to execute legislative programs as he sees fit without reporting the mode of execution to Congress, the single Presidential purpose disclosed on this record is to faithfully execute the laws by acting in an emergency to maintain the status quo, thereby preventing collapse of the legislative programs until Congress could act. The President's action served the same purposes as a judicial stay entered to maintain the status quo in order to preserve the jurisdiction of a court. In his Message to Congress immediately following the seizure, the President explained the necessity of his action in executing the military procurement and anti-inflation legislative programs and expressed his desire to cooperate with any legislative proposals approving, regulating or rejecting the seizure of the steel mills. Consequently, there is no evidence whatever of any Presidential purpose to defy Congress or act in any way inconsistent with the legislative will.
504
In United States v. Midwest Oil Co., supra, this Court approved executive action where, as here, the President acted to preserve an important matter until Congress could act—even though his action in that case was contrary to an express statute. In this case, there is no statute prohibiting the action taken by the President in a matter not merely important but threatening the very safety of the Nation. Executive inaction in such a situation, courting national disaster, is foreign to the concept of energy and initiative in the Executive as created by the Founding Fathers. The Constitution was itself 'adopted in a period of grave emergency. * * * While emergency does not create power, emergency may furnish the occasion for the exercise of power.'87 The Framers knew, as we should know in these times of peril, that there is real danger in Executive weakness. There is no cause to fear Executive tyranny so long as the laws of Congress are being faithfully executed. Certainly there is no basis for fear of dictatorship when the Executive acts, as he did in this case, only to save the situation until Congress could act.
505
Plaintiffs place their primary emphasis on the Labor M anagement Relations Act of 1947, hereinafter referred to as the Taft-Hartley Act, but do not contend that that Act contains any provision prohibiting seizure.
506
Under the Taft-Hartley Act, as under the Wagner Act, collective bargaining and the right to strike are at the heart of our national labor policy. Taft-Hartley preserves the right to strike in any emergency, however serious, subject only to an 80-day delay in cases of strikes imperiling the national health and safety.88 In such a case, the President may appoint a board of inquiry to report the facts of the labor dispute. Upon receiving that report, the President may direct the Attorney General to petition a District Court to enjoin the strike. If the injunction is granted, it may continue in effect for no more than 80 days, during which time the board of inquiry makes further report and efforts are made to settle the dispute. When the injunction is dissolved, the President is directed to submit a report to Congress together with his recommendations.89
507
Enacted after World War II, Taft-Hartley restricts the right to strike against private employers only to a limited extent and for the sole purpose of affording an additional period of time within which to settle the dispute. Taft-Hartley in no way curbs strikes before an injunction can be obtained and after an 80-day injunction is dissolved.
508
Plaintiffs admit that the emergency procedures of Taft-Hartley are not mandatory. Nevertheless, plaintiffs apparently argue that, since Congress did provide the 80-day injunction method for dealing with emergency strikes, the President cannot claim that an emergency exists until the procedures of Taft-Hartley have been exhausted. This argument was not the basis of the District Court's opinion and, whatever merit the argument might have had following the enactment of Taft-Hartley, it loses all force when viewed in light of the statutory pattern confronting the President in this case.
509
In Title V of the Defense Production Act of 1950,90 Congress stated:
510
'It is the intent of Congress, in order to provide for effective price and wage stabilization pursuant to title IV of this Act and to maintain uninterrupted production, that there be effective procedures for the settlement of labor disputes affecting national defense.' § 501.
511
Title V authorized the President to initiate labor-management conferences and to take action appropriate to carrying out the recommendations of such conferences and the provisions of Title V. § 502. Due regard is to be given to collective bargaining practice and stabilization policies and no action taken is to be inconsistent with Taft-Hartley and other laws. § 503. The purpose of these provisions was to authorize the President 'to establish a board, commission or other agency, similar to the War Labor Board of World War II, to carry out the title.'91
512
The President authorized the Wage Stabilization Board (WSB), which administers the wage stabilization functions of Title IV of the Defense Production Act, also to deal with labor disputes affecting the defense program.92 When extension of the Defense Production Act was before Congress in 1951, the Chairman of the Wage Stabilization Board described in detail the relationship between the Taft-Hartley procedures applicable to labor disputes imperiling the national health and safety and the new WSB dispute procedures especially devised for settlement of labor disputes growing out of the needs of the defense prgram.93 Aware that a technique separate from Taft-Hartley had been devised, members of Congress attempted to divest the WSB of its disputes powers. These attempts were defeated in the House, were not brought to a vote in the Senate and the Defense Production Act was extended through June 30, 1952, without change in the disputes powers of the WSB.94 Certainly this legislative creation of a new procedure for dealing with defense disputes negatives any notion that Congress intended the earlier and discretionary Taft-Hartley procedure to be an exclusive procedure.
513
Accordingly, as of December 22, 1951, the President had a choice between alternate procedures for settling the threatened strike in the steel mills: one route created to deal with peacetime disputes; the other route specially created to deal with disputes growing out of the defense and stabilization program. There is no question of by-passing a statutory procedure because both of the routes available to the President in December were based upon statutory authorization. Both routes were available in the steel dispute. The Union, by refusing to abide by the defense and stabilization program, could have forced the President to invoke Taft-Hartley at that time to delay the strike a maximum of 80 days. Instead, the Union agreed to cooperate with the defense program and submit the dispute to the Wage Stabilization Board.
514
Plaintiffs had no objection whatever at that time to the President's choice of the WSB route. As a result, the strike was postponed, a WSB panel held hearings and reported the position of the parties and the WSB recommended the terms of a settlement which it found were fair and equitable. Moreover, the WSB performed a function which the board of inquiry contemplated by Taft-Hartley could not have accomplished when it checked the recommended wage settlement against its own wage stabilization regulations issued pursuant to its stabilization functions under Title IV of the Defense Production Act. Thereafter, the parties bargained on the basis of the WSB recommendation.
515
When the President acted on April 8, he had exhausted the procedures for settlement available to him. Taft-Hartley was a route parallel to, not connected with, the WSB procedure. The strike had been delayed 99 days as contrasted with the maximum delay of 80 days under Taft-Hartley. There had been a hearing on the issues in dispute and bargaining which promised settlement up to the very hour before seizure had broken down. Faced with immediate national peril through stoppage in steel production on the one hand and faced with destruction of the wage and price legislative programs on the other, the President took temporary possession of the steel mills as the only course open to him consistent with his duty to take care that the laws be faithfully executed.
516
Plaintiffs' property was taken and placed in the possession of the Secretary of Commerce to prevent any interruption in steel production. It made no difference whether the stoppage was caused by a union-management dispute over terms and conditions of employmnt, a union-Government dispute over wage stabilization or a management-Government dispute over price stabilization. The President's action has thus far been effective, not in settling the dispute, but in saving the various legislative programs at stake from destruction until Congress could act in the matter.
VI.
517
The diversity of views expressed in the six opinions of the majority, the lack of reference to authoritative precedent, the repeated reliance upon prior dissenting opinions, the complete disregard of the uncontroverted facts showing the gravity of the emergency and the temporary nature of the taking all serve to demonstrate how far afield one must go to affirm the order of the District Court.
518
The broad executive power granted by Article II to an officer on duty 365 days a year cannot, it is said, be invoked to avert disaster. Instead, the President must confine himself to sending a message to Congress recommending action. Under this messenger-boy concept of the Office, the President cannot even act to preserve legislative programs from destruction so that Congress will have something left to act upon. There is no judicial finding that the executive action was unwarranted because there was in fact no basis for the President's finding of the existence of an emergency95 for, under this view, the gravity of the emergency and the immediacy of the threatened disaster are considered irrelevant as a matter of law.
519
Seizure of plaintiffs' property is not a pleasant undertaking. Similarly unpleasant to a free country are the draft which disrupts the home and military procurement which causes economic dislocation and compels adoption of price controls, wage stabilization and allocation of materials. The President informed Congress that even a temporary Government operation of plaintiffs' properties was 'thoroughly distasteful' to him, but was necessary to prevent immediate paralysis of the mobilization program. Presidents have been in the past, and any man worthy of the Office should be in the future, free to take at least interim action necessary to execute legislative programs essential to survival of the Nation. A sturdy judiciary should not be swayed by the unpleasantness or unpopularity of necessary executive action, but must independently determine for itself whether the President was acting, as required by the Constitution, to 'take Care that the Laws be faithfully executed.'
520
As the District Judge stated, this is no time for 'timorous' judicial action. But neither is this a time for timorous executive action. Faced with the duty of executing the defense programs which Congress had enacted and the disastrous effects that any stoppage in steel production would have on those programs, the President acted to preserve those programs by seizing the steel mills. There is no question that the possession was other than temporary in character and subject to congressional direction—either approving, disapproving or regulating the manner in which the mills were to be administered and returned to the owners. The President immediately informed Congress of his action and clearly stated his intention to abide by the legislative will. No basis for claims of arbitrary action, unlimited powers or dictatorial usurpation of congressional power appears from the facts of this case. On the contrary, judicial, legislative and executive precedents throughout our history demonstrate that in this case the President acted in full conformity with his duties under the Constitution. Accordingly, we would reverse the order of the District Court.
1
This Board was established under Executive Order 10233, 50 U.S.C.A.Appendix, § 2071 note, 16 Fed.Reg. 3503, U.S.Code Cong. Service 1951, p. 1018.
2
The Selective Service Act of 1948, 62 Stat. 604, 625—627, 50 U.S.C.App. (Supp. IV) § 468, 50 U.S.C.A.Appendix, § 468; the Defense Production Act of 1950, Tit. II, 64 Stat. 798, as amended, 65 Stat. 132, 50 U.S.C.A.Appendix, § 2081.
3
93 Cong.Rec. 3637—3645.
4
93 Cong.Rec. 3835—3836.
5
Labor Management Relations Act, 1947, 61 Stat. 136, 152 156, 29 U.S.C. (Supp. IV) §§ 141, 171—180, 29 U.S.C.A. §§ 141, 171 180.
1
The power to seize plants under the War Labor Disputes Act ended with the termination of hostilities, proclaimed on Dec. 31, 1946, prior to the incoming of the Eightieth Congress; and the power to operate previously seized plants ended on June 30, 1947, only a week after the enactment of the Labor Management Relations Act over the President's veto. 57 Stat. 163, 165, 50 U.S.C.App. (1946 ed.) § 1503, 50 U.S.C.A.Appendix, § 1503. See 2 Legislative History of the Labor Management Relations Act, 1947 (published by National Labor Relations Board, 1948), 1145, 1519, 1626.
2
Some of the more directly relevant statements are the following: 'In most instances the force of public opinion should make itself sufficiently felt in this 80-day period to bring about a peaceful termination of the controversy. Should this expectation fail, the bill provides for the President laying the matter before Congress for whatever legislation seems necessary to preserve the health and safety of the Nation in the crisis.' Senate Report No. 105, 80th Cong., 1st Sess. 15.
'We believe it would be most unwise for the Congress to attempt to adopt laws relating to any single dispute between private parties.' Senate Minority Report, id., Part 2, at 17.
In the debates Senator H. Alexander Smith, a member of the Senate Committee on Labor and Public Welfare, said, 'In the event of a deadlock and a strike is not ended, the matter is referred to the President, who can use his discretion as to whether he will present the matter to the Congress, whether or not the situation is such that emergency legislation is required.
'Nothing has been done with respect to the Smith-Connally Act. There is no provision for taking over property or running plants by the Government. We simply provide a procedure which we hope will be effective in 99 out of 100 cases where the health or safety of the people may be affected, and still leave a loophole for congressional action.' 93 Cong.Rec. 4281.
The President in his veto message said, '* * * it would be mandatory for the President to transfer the whole problem to the Congress, even if it were not in session. Thus, major economic disputes between employers and their workers over contract terms might ultimately be thrown into the political arena for disposition. One could scarcely devise a less effective method for discouraging critical strikes.' 93 Cong.Rec. 7487.
3
Senator Taft said:
'If there finally develops a complete national emergency threatening the safety and health of the people of the United States, Congress can pass an emergency law to cover the particular emergency. * * *
'We have felt that perhaps in the case of a general strike, or in the case of other serious strikes after the termination of every possible effort to resolve the dispute, the remedy might be an emergency act by Congress for that particular purpose.
'* * * But while such a bill (For seizure of plants and union funds) might be prepared, I should be unwilling to place such a law on the books until we actually face such an emergency, and Congress applies the remedy for the particular emergency only. Eighty days will provide plenty of time within which to consider the possibility of what should be done; and we believe very strongly that there should not be anything in this law which prohibits finally the right to strike.' 93 Cong.Rec. 3835—3836.
4
93 Cong. Rec. 3637—3645.
5
See, for instance, the statements of James B. Carey, Secretary of the C.I.O., in opposition to S. 2054, 77th Cong., 1st Sess., which eventually became the War Labor Disputes Act. Central to that Act, of course, was the temporary grant of the seizure power to the President. Mr. Carey then said:
'Senator Burton. If this would continue forever it might mean the nationalization of industry?
'Mr. Carey. Let us consider it on a temporary basis. How is the law borne by labor? Here is the Government-sponsored strike breaking agency, and nothing more.
'Our suggestion of a voluntary agreement of the representatives of industry and labor and Government, participating in calling a conference, is a democratic way. The other one is the imposition of force, the other is the imposition of seizure of certain things for a temporary period; the destruction of collective bargaining, and it would break down labor relations that may have been built up over a long period.'
Hearing before a Subcommittee of the Senate Committee on the Judiciary on S. 2054, 77th Cong. 1st Sess. 132.
6
Clearly the President's message of April 9 and his further letter to the President of the Senate on April 21 do not satisfy this requirement. Cong.Rec., April 9, 1952, pp. 3962—3963; id., April 21, 1952, p. 4192.
7
64 Stat. 798 et seq., 65 Stat. 131 et seq., 50 U.S.C.App. § 2061 et seq., 50 U.S.C.A.Appendix, § 2061 et seq.
8
§§ 501, 502, 64 Stat. 798, 812, 50 U.S.C.App. §§ 2121, 2122, 50 U.S.C.A.Appendix, §§ 2121, 2122.
9
§§ 502, 503, 64 Stat. 798, 812, 50 U.S.C.App. §§ 2122, 2123, 50 U.S.C.A.Appendix, §§ 2122, 2123.
10
The provision of § 502 in S. 3936, as reported by the Senate Committee on Banking and Currency, read as follows: 'The President is authorized, after consultation with labor and management, to establish such principles and procedures and to take such action as he deems appropriate for the settlement of labor disputes affecting national defense, including the designation of such persons, boards or commissions as he may deem appropriate to carry out the provisions of this title.' That language was superseded in the Conference Report by the language that was finally enacted. H.R.Rep. No. 3042, 81st Cong., 2d Sess. 16, 35. The change made by the Conference Committee was for the purpose of emphasizing the voluntary nature of the cooperation sought from the public, labor, and management; as Senator Ives explained under repeated questioning, 'If any group were to hold out, there would be no agreement (on action to carry out the provisions of this title).' 96 Cong.Rec. 14071—14072. Chairman Maybank of the Senate Committee on Banking and Currency said, 'The labor disputes title of the Senate was accepted by the House with amendment which merely indicates more specific avenues through which the President may bring labor and management together.' Id., at 14073.
11
S.Rep. No. 2250, 81st Cong., 2d Sess. 41; H.R.Rep. No. 3042, 81st Cong., 2d Sess. 35. It is hardly necessary to note that Congressional authorization of an agency similar to the War Labor Board does not imply a Congressional grant of seizure power similar to that given the President specifically by § 3 of the War Labor Disputes Act of 1943. The War Labor Board, created by § 7 of the 1943 Act, had only administrative sanctions. See 57 Stat. 163, 166—167; see Report of Senate Committee on Labor and Public Welfare, The Disputes Functions of the Wage Stabilization Board, 1951, S.Rep. No. 1037, 82d Cong., 1st Sess. 6. The seizure power given by Congress in § 3 of the 1943 Act was given to the President, not to the War Labor Board, and was needed only when the War Labor Board reported it had failed; the seizure power was separate and apart from the War Labor Board machinery for settling disputes. At most the Defense Production Act does what § 7 of the War Labor Disputes Act did; the omission of any grant of seizure power similar to § 3 is too obvious not to have been conscious. At any rate, the Wage Stabilization Board differs substantially from the earlier War Labor Board. In 1951 the Senate Committee studying the disputes functions of the Wage Stabilization Board pointed out the substantial differences between that Board and its predecessor and concluded that 'The New Wage Stabilization Board * * * does not rely on title V of the Defense Production Act for its authority.' S.Rep.No. 1037, 82d Cong., 1st Sess., supra, at 4—6.
12
S.Rep. No. 2250, 81st Cong., 2d Sess. 41.
13
See 96 Cong.Rec. 14071.
14
Id., at 12275. Just before the paragraph quoted in the text, Senator Ives had said:
'In fact, the courts have upheld the constitutionality of the national emergency provisions of the Labor-Management Relations Act of 1947, which can require that workers stay on the job for at least 80 days when a strike would seriously threaten the national health and safety in peacetime.
'By the terms of the pending bill, the Labor-Management Relations Act of 1947 would be controlling in matters affecting the relationship between labor and management, including collective bargaining. It seems to me, however, that this is as far as we should go in legislation of this type.'
15
16 Fed.Reg. 3503. The disputes functions were not given to the Wage Stabilization Board under Title V, see note 11, supra, but apparently under the more general Title IV, entitled 'Price and Wage Stabilization.'
16
See Hearings before a Subcommittee of the House Committee on Education and Labor, Disputes Functions of Wage Stabilization Board, 82d Cong., 1st Sess. (May 28—June 15, 1951); Hearings before the Subcommittee on Labor and Labor-Management Relations of Senate Committee on Labor and Public Welfare, Wage Stabilization and Disputes Program, 82d Cong., 1st Sess. (May 17—June 7, 1951). The resulting Report of the Senate Committee, S.Rep. No. 1037, 82d Cong., 1st Sess. 9, recommended that 'Title V of the Defense Production Act be retained' and that 'No statutory limitations be imposed on the President's authority to deal with disputes through voluntary machinery; such limitations, we believe, would infringe on the President's constitutional power.' (Emphasis added.) The Committee found, id., at 10, that the 'Wage Stabilization Board relies completely on voluntary means for settling disputes and is, therefore, an extension of free collective bargaining. The Board has no powers of legal compulsion.' 'Executive Order No. 10233,' the Committee found further, 'does not in any way run counter to the * * * Taft-Hartley Act. It is simply an additional tool, not a substitute for these laws.' Of particular relevance to the present case, the Committee declared:
'The recommendations of the Wage Stabilization Board in disputes certified by the President have no compulsive force. The parties are free to disregard recommendations of the Wage Stabilization Board * * *.
'There is, of course, the President's authority to seize plants under the Selective Service Act (a power not here used), but this is an authority which exists independently of the Wage Stabilization Board and its disputes-handling functions. In any case, seizure is an extraordinary remedy, and the authority to seize, operates whether or not there is a disputes-handling machinery.' Id., at 5.
17
97 Cong.Rec. 8390—8415.
18
65 Stat. 131.
19
Instances of seizure by the President are summarized in Appendix II, infra.
20
One of President Wilson's seizures has given rise to controversy. In his testimony in justification of the Montgomery Ward seizure during World War II, Attorney General Biddle argued that the World War I seizure of Smith & Wesson could not be supported under any of the World War I statutes authorizing seizure. He thus adduced it in support of the claim of so-called inherent presidential power of seizure. See Hearings before House Select Committee to Investigate the Seizure of Montgomery Ward, 78th Cong., 2d Sess. 167—168. In so doing, he followed the ardor of advocates in claiming everything. In his own opinion to the President, he rested the power to seize Montgomery Ward on the statutory authority of the War Labor Disputes Act, see 40 Ops. Att'y Gen. 312 (1944), and the Court of Appeals decision upholding the Montgomery Ward seizure confined itself to that ground. United States v. Montgomery Ward & Co., 7 Cir., 150 F.2d 369. What Attorney General Biddle said about Smith & Wesson was, of course, post litem motam. Whether or not the World War I statutes were broad enough to justify that seizure, it is clear that the taking officers conceived themselves as moving within the scope of statute law. See n. 3, Appendix II, infra. Thus, whether or not that seizure was within the statute, it cannot properly be cited as a precedent for the one before us. On this general subject, compare Attorney General Knox's opinion advising President Theodore Roosevelt against the so-called 'stewardship' theory of the Presidency. National Archives, Opinions of the Attorney General, Book 31, Oct. 10, 1902 (R.G. 60); Theodore Roosevelt, Autobiography, 388—389; 3 Morison, The Letters of Theodore Roosevelt, 323—366.
*
Governmental possession of the Nation's railroads taken on December 28, 1917, was specifically terminated by statute on March 1, 1920, prior to the end of the "war." See § 200 of the Transportation Act of 1920, 41 Stat. 456, 457.
1
What a President may do as a matter of expediency or extremity may never reach a definitive consitutional decision. For example, President Lincoln suspended the writ of habeas corpus, claiming the constitutional right to do so. See Ex part Merryman, 17 Fed.Cas.No.9,487. Congress ratified his action by the Act of March 3, 1863. 12 Stat. 755.
2
Mr. Justice Brandeis, speaking for the Court in United States v. North American Transportation & Trading Co., 253 U.S. 330, 333, 40 S.Ct. 518, 520, 64 L.Ed. 935, stated that the basis of the Government's liability for a taking of property was legislative authority, 'In order that the Government shall be liable to must appear that the officer who has physically taken possession of the property was duly authorized so to do, either directly by Congress or by the official upon whom Congress conferred the power.'
That theory explains cases like United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206, where the acts of the officials resulting in a taking were acts authorized by the Congress, though the Congress had not treated the acts us one of appropriation of private property.
War-time seizures by the military in connection with military operations, cf. United States v. Russell, 13 Wall. 623, 20 L.Ed. 474, are also in a different category.
1
A Hamilton may be matched againt a Madison. 7 The Works of Alexander Hamilton, 76—117; 1 Madison, Letters and Other Writings, 611—654. Professor Taft is counterbalanced by Theodore Roosevelt. Taft, Our Chief Magistrate and His Powers, 139—140; Theodore Roosevelt, Autobiography, 388—389. It even seems that President Taft cancels out Professor Taft. Compare his 'Temporary Petroleum Withdrawal No. 5' of September 27, 1909, United States v. Midwest Oil Co., 236 U.S. 459, 467, 468, 35 S.Ct. 309, 311, 59 L.Ed. 673, with his appraisal of executive power in 'Our Chief Magistrate and His Powers' 139—140.
2
It is in this class of cases that we find the broadest recent statements of presidential power, including those relied on here. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 57 S.Ct. 216, 221, 81 L.Ed. 255, involved, not the question of the President's power to act without congressional au-
thority, but the question of his right to act under and in accord with an Act of Congress. The constitutionality of the Act under which the President had proceeded was assailed on the ground that it delegated legislative powers to the President. Much of the Court's opinion is dictum, but the ratio decidendi is contained in the following language:
'When the President is to be authorized by legislation to act in respect of a matter intended to affect a situation in foreign territory, the legislator properly bears in mind the important consideration that the form of the President's action—or, indeed, whether he shall act at all—may well depend, among other things, upon the nature of the confidential information which he has or may thereafter receive, or upon the effect which his action may have upon our foreign relations. This consideration, in connection with what we have already said on the subject, discloses the unwisdom of requiring Congress in this field of governmental power to lay down narrowly definite standards by which the President is to be governed. As this court said in Mackenzie v. Hare, 239 U.S. 299, 311, 36 S.Ct. 106, 108, 60 L.Ed. 297, 'As a government, the United States is invested with all the attributes of sovereignty. As it has the character of nationality it has the powers of nationality, especially those which concern its relations and intercourse with other countries. We should hesitate long before limiting or embarrasing such powers.' (Italics supplied.)'
That case does not solve the present controversy. It recognized internal and external affairs as being in separate categories, and held that the strict limitation upon congressional delegations of power to the President over internal affairs does not apply with respect to delegations of power in external affairs. It was intimated that the President might act in external affairs without congressional authority, but not that he might act contrary to an Act of Congress.
Other examples of wide definition of presidential powers under statutory authorization are Chicago & Southern Air Lines v. Waterman Steamship Corp., 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568, and Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774. But see, Jecker v. Montgomery, 13 How. 498, 515, 14 L.Ed. 240; Western Union Telegraph Co. v. United States, D.C., 272 F. 311, affirmed, 2 Cir., 272 F. 893, reversed on consent of the parties, 260 U.S. 754, 43 S.Ct. 91, 67 L.Ed. 497; United States Harness Co. v. Graham, D.C., 288 F. 929.
3
Since the Constitution implies that the writ of habeas corpus may be suspended in certain circumstances but does not say by whom, President Lincoln asserted and maintained it as an executive function in the face of judicial challenge and doubt. Ex parte Merryman, 17 Fed.Cas. 144, No. 9,487; Ex parte Milligan, 4 Wall. 2, 125, 18 L.Ed. 281; see Ex parte Bollman, 4 Cranch, 75, 101, 2 L.Ed. 554. Congress eventually ratified his action. Habeas Corpus Act of March 3, 1863, 12 Stat. 755. See Hall, Free Speech in War Time, 21 Col.L.Rev. 526. Compare Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160, with Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611, and Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774, with the case at bar. Also compare Ex parte Vallandigham, 1 Wall. 243, 17 L.Ed. 589, with Ex parte Milligan, supra.
4
President Roosevelt's effort to remove a Federal Trade Commissioner was found to be contrary to the policy of Congress and impinging upon an area of congressional control, and so his removal power was cut down accordingly. Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611. However, his exclusive power of removal in executive agencies, affirmed in Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160, continued to be asserted and maintained. Morgan v. Tennessee Valley Authority, 6 Cir., 115 F.2d 990, certiorari denied 312 U.S. 701, 61 S.Ct. 806, 85 L.Ed. 1135; In re Power to Remove Members of the Tennessee Valley Authority, 39 O.A.G. 145; President Roosevelt's Message to Congress of March 23, 1938, The Public Papers and Addresses of Franklin D. Roosevelt, 1938 (Rosenman), 151.
5
The oft-cited Louisiana Purchase had nothing to do with the separation of powers as between the President and Congress, but only with state and federal power. The Louisiana Purchase was subject to rather academic criticism, not upon the ground that Mr. Jefferson acted without authority from Congress, but that neither had express authority to expand the boundaries of the United States by purchase or annexation. Mr. Jefferson himself had strongly opposed the doctrine that the State's delegation of powers to the Federal Government could be enlarged by resort to implied powers. Afterwards in a letter to John Breckenridge, dated August 12, 1803, he declared:
'The Constitution has made no provision for our holding foreign territory, still less for incorporating foreign nations into our Union. The executive in seizing the fugitive occurrence which so much advances the good of their country, have done an act beyond the Constitution. The Legislature is casting behind them metaphysical subtleties, and risking themselves like faithful servants, must ratify and pay for it, and throw themselves on their country for doing for them unauthorized, what we know they would have done for themselves had they been in a situation to do it.' 10 The Writings of Thomas Jefferson 407.
6
Selective Service Act of 1948, § 18, 62 Stat. 625, 50 U.S.C.App. (Supp. IV) § 468(c), 50 U.S.C.A.Appendix, § 468(c).
7
Defense Production Act of 1950, § 201, 64 Stat. 799, amended, 65 Stat. 132, 50 U.S.C.App. (Supp. IV) § 2081, 50 U.S.C.A.Appendix, § 2081. For the latitude of the condemnation power which underlies this Act, see United States v. Westinghouse Elec. & Mfg. Co., 339 U.S. 261, 70 S.Ct. 644, 94 L.Ed. 816, and cases therein cited.
8
Labor Management Relations Act, 1947, §§ 1, 206—210, 61 Stat. 136, 155, 156, 29 U.S.C. (Supp. IV) §§ 141, 176—180, 29 U.S.C.A. §§ 141, 176—180. The analysis, history and application of this Act are fully covered by the opinion of the Court, supplemented by that of Mr. Justice FRANKFURTER and of Mr. Justice BURTON, in which I concur.
9
'* * * he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices * * *.' U.S.Const. Art. II, § 2. He '* * * shall Commission all the Officers of the United States.' U.S.Const. Art. II, § 3. Matters such as those would seem to be inherent in the Executive if anything is.
10
How widely this doctrine espoused by the President's counsel departs from the early view of presidential power is shown by a comparison. President Jefferson, without authority from Congress, sent the American Fleet into the Mediterranean, where it engaged in a naval battle with the Tripolitan fleet. He sent a message to Congress on December 8, 1801, in which he said:
'Tripoli, the least considerable of the Barbary States, had come forward with demands unfounded either in right or in compact, and had permitted itself to denounce war on our failure to comply before a given day. The style of the demand admitted but one answer. I sent a small squadron of frigates into the Mediterranean * * * with orders to protect our commerce against the threatened attack. * * * Our commerce in the Mediterranean was blockaded, and that of the Atlantic in peril. * * * One of the Tripolitan cruisers having fallen in with, and engaged the small schooner Enterprise, * * * was captured, after a heavy slaughter of her men * * *. Unauthorized by the constitution, without the sanction of Congress, to go beyond the line of defence, the vessel being disabled from committing further hostilities, was liberated with its crew. The legislature will doubltless consider whether, by authorizing measures of offence, also, they will place our force on an equal footing with that of its adversaries. I communicate all material information on this subject, that in the exercise of the important function confided by the constitution to the legislature exclusively, their judgment may form itself on a knowledge and consideration of every circumstance of weight.' I Richardson, Messages and Papers of the Presidents, 314.
11
U.S.Const., Art. I, § 8, cl. 15.
12
14 Stat. 29, 16 Stat. 143, 8 U.S.C. § 55, 8 U.S.C.A. § 55.
13
20 Stat. 152, 10 U.S.C. § 15, 10 U.S.C.A. § 15.
14
In 1940, President Roosevelt proposed to transfer to Great Britain certain overage destroyers and small patrol boats then under construction. He did not presume to rely upon any claim of constitutional power as Commander-in-Chief. On the contrary, he was advised that such destroyers—if certified not to be essential to the defense of the United States—could be 'transferred, exchanged, sold, or otherwise disposed of,' because Congress had so authorized him. Accordingly, the destroyers were exchanged for air bases. In the same opinion, he was advised that Congress had prohibited the release or transfer of the so-called 'mosquito boats' then under construction, so those boats were not transferred. In the Matter of Acquisition of Naval and Air Bases in Exchange for Overage Destroyers, 39 O.A.G. 484. See also Matter of Training British Flying Students in the United States, 40 O.A.G. 58.
15
U.S.Const. Art. II, § 3.
16
President Wilson, just before our entrance into World War I, went before the Congress and asked its approval of his decision to authorize merchant ships to carry defensive weapons. He said:
'No doubt I already possess that authority without special warrant of law, by the plain implication of my constitutional duties and powers; but I prefer in the present circumstances not to act upon general implication. I wish to feel that the authority and the power of the Congress are behind me in whatever it may become necessary for me to do. We are jointly the servants of the people and must act together and in their spirit, so far as we can divine and interpret it.' XVII Richardson, op.cit., 8211.
When our Government was itself in need of shipping whilst ships flying the flags of nations overrun by Hitler, as well as belligerent merchantmen, were immobilized in American harbors where they had taken refuge, President Roosevelt did not assume that it was in his power to seize such foreign vessels to make up our own deficit. He informed Congress: 'I am satisfied, after consultation with the heads of the interested departments and agencies,
that we should have statutory authority to take over such vessels as our needs require. * * *' 87 Cong.Rec. 3072 (77th Cong., 1st Sess.); The Public Papers and Addresses of Franklin D. Roosevelt, 1941 (Rosenman), 94. The necessary statutory authority was shortly forthcoming. 55 Stat. 242.
In his first inaugural address President Roosevelt pointed out two courses to obtain legislative remedies, one being to enact measures he was prepared to recommend, the other to enact measures 'the Congress may build out of its experience and wisdom.' He continued, 'But in the event that the Congress shall fail to take and of these two courses, and in the event that the national emergency is still critical, I shall not evade the clear course of duty that will then confront me. I shall ask the Congress for the one remaining instrument to meet the crisis—broad Executive power to wage a war against the emergency, as great as the power that would be given to me if we were in fact invaded by a foreign foe.' (Emphasis supplied.) The Public Papers and Adresses of Franklin D. Roosevelt, 1933 (Rosenman), 15.
On March 6, 1933, 48 Stat. 1689, President Roosevelt proclaimed the Bank Holiday. The Proclamation did not invoke constitutional powers of the Executive but expressly and solely relied upon the Act of Congress of October 6, 1917, 40 Stat. 411, § 5(b), as amended, 50 U.S.C.A.Appendix, § 5(b). He relied steadily on legislation to empower him to deal with economic emergency. The Public Papers and Addresses of Franklin D. Roosevelt, 1933 (Rosenman), 24.
It is interesting to note Holdsworth's comment on the powers of legislation by proclamation when in the hands of the Tudors. 'The extent to which they could be legally used was never finally settled in this century, because the Tudors made so tactful a use of their powers that no demand for the settlement of this question was raised.' 4 Holdsworth, History of English Law, 104.
17
The North American Aviation Company was under direct and binding contracts to supply defense items to the Government. No such contracts are claimed to exist here. Seizure of plants which refused to comply with Government orders had been expressly authorized by Congress in § 9 of the Selective Service Act of 1940, 54 Stat. 885, 892, so that the seizure of the North American plant was entirely consistent with congressional policy. The company might have objected on technical grounds to the seizure, but it was taken over with acquiescence, amounting to all but consent, of the owners who had admitted that the situation was beyond their control. The strike involved in the North American case was in violation of the union's collective agreement and the national labor leaders approved the seizure to end the strike. It was described as in the nature of an insurrection, a Communist-led political strike against the Government's lend-lease policy. Here we have only a loyal, lawful, but regrettable economic disagreement between management and labor. The North American plant contained government-owned machinery, material and goods in the process of production to which workmen were forcibly denied access by picketing strikers. Here no Government property is protected by the seizure. See New York Times of June 10, 1941, pp. 1, 14 and 16, for substantially accurate account of the proceedings and the conditions of violence at the North American plant.
The North American seizure was regarded as an execution of congressional policy. I do not regard it as a precedent for this, but, even if I did, I should not bind present judicial judgment by earlier partisan advocacy.
Statements from a letter by the Attorney General to the Chairman of the Senate Committee on Labor and Public Welfare, dated February 2, 1949, with reference to pending labor legislation, while not cited by any of the parties here are sometimes quoted as being in support of the 'inherent' powers of the President. The proposed bill contained a mandatory provision that during certain investigations the disputants in a labor dispute should continue operations under the terms and conditions of employment existing prior to the beginning of the dispute. It made no provision as to how continuance should be enforced and specified no penalty for disobedience. The Attorney General advised that in appropriate circumstances the United States would have access to the courts to protect the national health, safety and welfare. This was the rule laid down by this Court in Texas & N.O.R. Co. v. Brotherhood of Steamship Clerks, 281 U.S. 548, 50 S.Ct. 427, 74 L.Ed. 1034. The Attorney General observed:
'However, with regard to the question of the power of the Government under Title III, I might point out that the inherent power of the President to deal with emergencies that affect the health, safety and welfare of the entire Nation is exceedingly great. See Opinion of Attorney General Murphy of October 4, 1939, 39 Op.A.G. 344, 347; United States v. United Mine Workers of America, 1947, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884.'
'Regardless of the general reference to 'inherent powers,' the citations were instances of congressional authorization. I do not suppose it is open to doubt that power to see that the laws are faithfully executed was ample basis for the specific advice given by the Attorney General in this letter.
18
U.S.Const. Art. I, § 9, cl. 2.
19
I exclude, as in a very limited category by itself, the establishment of martial law. Cf. Ex parte Milligan, 4 Wall. 2, 18 L.Ed. 281; Duncan v. Kahanamoku, 327 U.S. 304, 66 S.Ct. 606, 90 L.Ed. 688.
20
I Nazi Conspiracy and Aggression 126—127; Rossiter, Constitutional Dictatorship, 33—61; Brecht, Prelude to Silence, 138.
21
Rossiter, Constitutional Dictatorship, 117—129.
22
Defense of the Realm Act, 1914, 4 & 5, Geo. V. c. 29, as amended, c. 63; Emergency Powers (Defence) Act, 1939, 2 & 3 Geo. VI, c. 62; Rossiter, Constitutional Dictatorship, 135—184.
23
Churchill, The Unrelenting Struggle, 13. See also id., at 279—281.
24
39 Op.Atty.Gen. 348.
25
Wilson, Constitutional Government in the United States, 68—69.
26
Rossiter, The Supreme Court and the Commander in Chief, 126—132.
27
We follow the judicial tradition instituted on a memorable Sunday in 1612, when King James took offense at the independence of his judges and, in rage, declared: 'Then I am to be under the law—which it is treason to affirm.' Chief Justice Coke replied to his King: 'Thus wrote Bracton, 'The King ought not to be under any man, but he is under God and the law." 12 Coke 63 (as to its verity, 18 Eng.Hist.Rev. 664—675); 1 Campbell, Lives of the Chief Justices, 272.
1
'Article I
'Section. 1. All legislative Powers herein granted shall be vested in a Congress of the United States * * *.
'Section. 8. The Congress shall have Power * * *;
'To regulate Commerce with foreign Nations, and among the several States * * *;
'To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.'
2
61 Stat. 155, 29 U.S.C. (Supp. IV) § 176, 29 U.S.C.A. § 176.
3
61 Stat. 155—156, 29 U.S.C. (Supp. IV) §§ 176—180, 29 U.S.C.A. §§ 176—180.
4
The Chairman of the Senate Committee sponsoring the bill said in the Senate:
'We did not feel that we should put into the law, as a part of the collectivebargaining machinery, an ultimate resort to compulsory arbitration, or to seizure, or to any other action. We feel that it would interfere with the whole process of collective bargaining. If such a remedy is available as a routine remedy, there will always be pressure to resort to it by whichever party thinks it will receive better treatment through such a process than it would receive in collective bargaining, and it will back out of collective bargaining. It will not make a bona-fide attempt to settle if it thinks it will receive a better deal under the final arbitration which may be provided.
'We have felt that perhaps in the case of a general strike, or in the case of other serious strikes, after the termination of every possible effort to resolve the dispute, the remedy might be an emergency act by Congress for that particular purpose.
'I have had in mind drafting such a bill, giving power to seize the plants, and other necessary facilities, to seize the unions, their money, and their treasury, and requisition trucks and other equipment; in fact, to do everything that the British did in their general strike of 1926. But while such a bill might be prepared, I should be unwilling to place such a law on the books until we actually face such an emergency, and Congress applies the remedy for the particular emergency only. Eighty days will provide plenty of time within which to consider the possibility of what should be done; and we believe very strongly that there should not be anything in this law which prohibits finally the right to strike.' 93 Cong.Rec. 3835—3836.
Part of this quotation was relied upon by this Court in Amalgamated Association of Street Railway & Motor Coach Employees v. Wisconsin Employment Relations Board, 340 U.S. 383, 396, note 21, 71 S.Ct. 359, 366, 95 L.Ed. 364.
5
Under Titles IV and V of the Defense Production Act of 1950, 64 Stat. 803—812, 50 U.S.C.App. (Supp. IV) §§ 2101—2123, 50 U.S.C.A.Appendix, §§ 2101—2123; and see Exec. Order No. 10233, 50 U.S.C.A.Appendix, § 2071 note, 16 Fed.Reg. 3503.
6
Congress has authorized other types of seizure under conditions not present here. Section 201 of the Defense Production Act authorizes the President to acquire specific 'real property, including facilities, temporary use thereof, or other interest therein * * *' by condemnation. 64 Stat. 799, as amended, 65 Stat. 132, see 50 U.S.C.App. (Supp. IV) § 2081, 50 U.S.C.A.Appendix, § 2081. There have been no declarations of taking or condemnation proceedings in relation to any of the properties involved here. Section 18 of the Selective Service Act of 1948 authorizes the President to take possession of a plant or other facility failing to fill certain defense orders placed with it in the manner there prescribed. 62 Stat. 625, 50 U.S.C.App. (Supp. IV) § 468, 50 U.S.C.A.Appendix, § 468. No orders have been so placed with the steel plants seized.
7
The President and Congress have recognized the termination of the major hostilities in the total wars in which the Nation has been engaged. Many wartime procedures have expired or been terminated.
The War Labor Disputes Act, 57 Stat. 163 et seq., 50 U.S.C.App. §§ 1501—1511, 50 U.S.C.A.Appendix, §§ 1501—1511, expired June 30, 1947, six months after the President's declaration of the end of hostilities, 3 CFR, 1946 Supp., p. 77. The Japanese Peace Treaty was approved by the Senate March 20, 1952, 98 Cong.Rec. 2635, and proclaimed by the President April 28, 1952, No. 2974, 17 Fed.Reg. 3813.
1
1804, 2 Cranch 170, 2 L.Ed. 243.
2
2 Cranch at pages 177—178, 2 L.Ed. 243 (emphasis added).
3
Decisions of this Court which have upheld the exercise of presidential power include the following: Prize Cases (The Amy Warwick), 1863, 2 Black 635, 17 L.Ed. 459, (subsequent ratification of President's acts by Congrss); In re Neagle, 1890, 135 U.S. 1, 10 S.Ct. 658, 34 L.Ed. 55, (protection of federal officials from personal violence while performing official duties); In re Debs, 1895, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092 (injunction to prevent forcible obstruction of interstate commerce and the mails); United States v. Midwest Oil Co., 1915, 236 U.S. 459, 35 S.Ct. 309, 59 L.Ed. 673 (acquiescence by Congress in more than 250 instances of exercise of same power by various Presidents over period of 80 years); Myers v. United States, 1926, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (control over subordinate officials in executive department) (but see Humphrey's Executor v. United States, 1935, 295 U.S. 602, 626—628, 55 S.Ct. 869, 873, 874, 79 L.Ed. 1611); Hirabayashi v. United States, 1943, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774, and Korematsu v. United States, 1944, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (express congressional authorization); cf. United States v. Russell, 1871, 13 Wall. 623, 20 L.Ed. 474 (imperative military necessity in area of combat during war); United States v. Curtiss-Wright Export Corp., 1936, 299 U.S 304, 57 S.Ct. 216, 81 L.Ed. 255 (power to negotiate with foreign governments); United States v. United Mine Workers, 1947, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (seizure under specific statutory authorization).
4
Chief Justice Marshall, in McCulloch v. Maryland, 1819, 4 Wheat. 316, 415, 4 L.Ed. 579.
5
Letter of April 4, 1864, to A. G. Hodges, in 10 Complete Works of Abraham Lincoln (Nicolay and Hay ed. 1894), 66.
6
Roosevelt, Autobiography (1914 ed.), 371—372.
7
Letter of April 4, 1864, to A. G. Hodges, in 10 Complete Words of Abraham Lincoln (Nicolay and Hay ed. 1894), 66.
8
61 Stat. 155, 29 U.S.C. (Supp. IV) § 176, 29 U.S.C.A. § 176.
9
93 Cong.Rec. 3637—3645; cf. id., at 3835—3836.
10
61 Stat. 156, 29 U.S.C. (Supp. IV) § 180, 29 U.S.C.A. § 180.
11
E.g., S.Rep.No.105, 80th Cong., 1st Sess. 15; 93 Cong.Rec. 3835—3836; id., at 4281.
12
The producer must have been notified that the order was placed pursuant to the Act. The Act provides in pertinent part as follows:
'(a) Whenever the President after consultation with and receiving advice from the National Security Resources Board determines that it is in the interest of the national security for the Government to obtain prompt delivery of any articles or materials the procurement of which has been authorized by the Congress exclusively for the use of the armed forces of the United States, or for the use of the Atomic Energy Commission, he is authorized, through the head of any Government agency, to place with any person operating a plant, mine, or other facility capable of producing such articles or materials an order for such quantity of such articles or materials as the President deems appropriate. Any person with whom an order is placed pursuant to the provisions of this section shall be advised that such order is placed pursuant to the provisions of this section.
'(c) In case any person with whom an order is placed pursuant to the provisions of subsection (a) refuses or fails—
'(2) to fill such order within the period of time prescribed by the President or as soon thereafter as possible as determined by the President;
'(3) to produce the kind or quality of articles or materials ordered; or
'(4) to furnish the quantity, kind, and quality of articles or materials ordered at such price as shall be negotiated between such person and the Government agency concerned; or in the event of failure to negotiate a price, to furnish the quantity, kind, and quality of articles or materials ordered at such price as he may subsequently be determined to be entitled to receive under subsection (d); the President is authorized to take immediate possession of any plant, mine, or other facility of such person and to operate it, through any Government agency, for the production of such articles or materials as may be required by the Government.' 62 Stat. 625, 50 U.S.C.App. (Supp. IV) § 468, 50 U.S.C.A.Appendix, § 468. The Act was amended in 1951 and redesignated the Universal Military Training and Service Act, but no change was made in this section. 65 Stat. 75.
13
39 Stat. 213, 50 U.S.C.A. § 80; 54 Stat. 892.
14
The Government has offered no explanation, in the record, the briefs, or the oral argument, as to why it could not have made both a literal and timely compliance with the provisions of that Act. Apparently the Government could have placed orders with the steel companies for the various types of steel needed for defense purposes, and instructed the steel companies to ship the mate riel directly to producers of planes, tanks, and munitions. The Act does not require that government orders cover the entire capacity of a producer's plant before the President has power to seize.
Our experience during World War I demonstrates the speed with which the Government can invoke the remedy of seizing plants which fail to fill compulsory orders. The Federal Enameling & Stamping Co., of McKees Rocks, Pa., was served with a compulsory order on September 13, 1918, and seized on the same day. The Smith & Wesson plant at Springfield, Mass., was seized on September 13, 1918, after the company had failed to make deliveries under a compulsory order issued the preceding week. Communication from Ordnance Office to War Department Board of Appraisers, entitled 'Report on Plants Commandeered by the Ordnance Office,' Dec. 19, 1918, pp. 3, 4, in National Archives, Records of the War Department, Office of the Chief of Ordnance, O.O. 004.002/260. Apparently the Mosler Safe Co., of Hamilton, Ohio, was seized on the same day on which a compulsory order was issued. Id., at 2; Letter from counsel for Mosler Safe Co. to Major General George W. Goethals, Director of Purchase, Storage and Traffic, War Department, Dec. 9, 1918, p. 1, in National Archives, Records of the War Department, Office of the General Staff, PST Division 400.1202.
15
The Orono, C.C.D.Mass.1812, 18 Fed.Cas.No.10,585.
1
59 Stat. 1031, 1037 (1945); 91 Cong.Rec. 8190 (1945).
2
U.N. Security Council, U.N. Doc. S/1501 (1950); Statement by the President, June 25, 1950, United States Policy in the Korean Crisis, Dept. of State Pub. (1950), 16.
3
U.N. General Assembly, U.N. Doc. A/1771 (1951).
4
61 Stat. 103 (1947), 22 U.S.C.A. § 1401 et seq.
5
62 Stat. 137 (1948), as amended, 63 Stat. 50 (1949), 64 Stat. 198 (1950), 22 U.S.C.A. § 1501 et seq.
6
63 Stat. 2241 (1949), extended to Greece and Turkey, S. Exec. E, 82d Cong., 2d Sess. (1952), advice and consent of the Senate granted. 98 Cong.Rec. 930.
7
63 Stat. 714 (1949), 22 U.S.C.A. § 1571 et seq.
8
S. Execs. A, B, C and D, 82d Cong., 2d Sess. (1952), advice and consent of the Senate granted. 98 Cong.Rec. 2594, 2595, 2605.
9
65 Stat. 373 (1951), 22 U.S.C.A. § 1651.
10
65 Stat. 730 (1951); see H.R.Doc. No. 147, 82d Cong., 1st Sess. 3 (1951).
11
See H.R.Doc. 382, 82d Cong., 2d Sess. (1952).
12
Hearings before Senate Committee on Foreign Relations on the Mutual Security Act of 1952, 82d Cong., 2d Sess. 565—566 (1952); Hearings before House Committee on Foreign Affairs on the Mutual Security Act of 1952, 82d Cong., 2d Sess. 370 (1952).
13
65 Stat. 75 (1951); S.Rep. No. 117, 82d Cong., 1st Sess. 3 (1951).
14
Address by Secretary of Defense Lovett Before the American Society of Newspaper Editors, Washington, April 18, 1952.
15
Fiscal Year 1952, 65 Stat. 423, 760 (1951); F.Y. 1951, 64 Stat. 595, 1044, 1223, 65 Stat. 48, (1950—1951); F.Y. 1950, 63 Stat. 869, 973, 987 (1949); F.Y. 1949, 62 Stat. 647 (1948); F.Y. 1948, 61 Stat. 551 (1947).
16
See H.R.Rep. No. 1685, 82d Cong., 2d Sess. 2 (1952), on H.R. 7391.
17
See H.R.Rep. No. 384, 82d Cong., 1st Sess. 5 (1951); 97 Cong.Rec. 13647—13649.
18
Defense Production Act, Tit. III, 64 Stat. 798 (1950), 65 Stat. 138 (1951), 50 U.S.C.A.Appendix, § 2091 et seq.
19
Note 18, supra, Tits. IV and V, 50 U.S.C.A.Appendix, §§ 2101 et seq., 2121 et seq.
20
S.Rep. No. 470, 82d Cong., 1st Sess. 8 (1951).
21
Id., at 8—9.
22
Exec.Order 10340, 17 Fed.Reg. 3139 (1952).
23
Cong.Rec., April 9, 1952, pp. 3962—3963.
24
Cong.Rec., April 21, 1952, p. 4192.
25
Chicago & Southern Air Lines v. Waterman S.S. Corp., 1948, 333 U.S. 103, 111, 68 S.Ct. 431, 436, 92 L.Ed. 568, and cases cited.
26
The Federalist, No. XLVIII.
27
The Federalist, No. LXX.
28
McCulloch v. State of Maryland, 1819, 4 Wheat. 316, 415, 424, 4 L.Ed. 579.
29
United States v. Classic, 1941, 313 U.S. 299, 315—316, 1037—1038, 61 S.Ct. 1031, 85 L.Ed. 1368; Home Building & Loan Ass'n v. Blaisdell, 1934, 290 U.S. 398, 442—443, 241—242, 54 S.Ct. 231, 78 L.Ed. 413.
30
4 Annals of Congress 1411, 1413 (1794).
31
IV Works of Hamilton (Lodge ed. 1904) 432—444.
32
10 Annals of Congress 596, 613—614 (1800); also printed in 5 Wheat.App. pp. 3, 27 (1820).
33
10 Annals of Congress 619 (1800).
34
Fong Yue Ting v. United States, 1893, 149 U.S. 698, 714, 13 S.Ct. 1016, 1022, 37 L.Ed. 905.
35
See The Prize Cases (the Amy Warwick), 1863, 2 Black 635, 17 L.Ed. 459; Randall, Constitutional Problems Under Lincoln (1926); Corwin, The President: Office and Powers (1948 ed.), 277 281.
36
War of the Rebellion, Official Records of the Union and Confederate Armies, Series I, Vol. II, pp. 603—604 (1880).
37
12 Stat. 334 (1862).
38
Senator Wade, Cong. Globe, 37th Cong., 2d Sess. 509 (1862); Rep. Blair, id., at 548.
39
Senators Browning, Fessenden, Cowan, Grimes, id., at 510, 512, 516, 520.
40
In 1818, the House Committee on Military Affairs recommended payment of compensation for vessels seized by the Army during the War of 1812. American State Papers, Claims (1834), 649. Mitchell v. Harmony, 1852, 13 How. 115, 134, 14 L.Ed. 75, involving seizure of a wagon train by an Army officer during the Mexican War, noted that such executive seizure was proper in case of emergency, but affirmed a personal judgment against the officer on the ground that no emergency had been found to exist. The judgment was paid by the United States pursuant to Act of Congress. 10 Stat. 727 (1852).
41
13 Wall. at pages 627—628. Such a compensable taking was soon distinguished from the noncompensable taking and destruction of property during the extreme exigencies of a military campaign. United States v. Pacific R. Co., 1887, 120 U.S. 227, 7 S.Ct. 490, 30 L.Ed. 634.
42
135 U.S. at page 64, 10 S.Ct. at page 668.
43
Rich, The President and Civil Disorders (1941), 72—86.
44
Cleveland, The Government in the Chicago Strike of 1894 (1913).
45
26 Cong.Rec. 7281—7284, 7544—7546 (1894).
46
Theodore Roosevelt, Autobiography (1916 ed.), 479—491.
47
Id., at 378.
48
Humphrey's Executor v. United States, 1935, 295 U.S. 602, 626, 55 S.Ct. 869, 873, 79 L.Ed. 1611, disapproved expressions in the Myers opinion only to the extent that they related to the President's power to remove members of quasi-legislative and judicial commissions as constrasted with executive employees.
49
Brief for the United States, No. 278, October Term, 1914, pp. 11, 75—77, 88—90.
50
National War Labor Board. Bureau of Labor Statistics, Bull. 287 (1921).
51
Id., at 24—25, 32—34. See also, 2 Official U.S. Bull. (1918) No. 412; 8 Baker, Woodrow Wilson, Life & Letters (1939), 400—402; Berman, Labor Disputes and the President (1924), 125—153; Pringle, The Life and Times of William Howard Taft (1939), 915 925.
52
39 Stat. 619, 645 (1916), 10 U.S.C.A. § 1361, provides that the President may take possession of any system of transportation in time of war. Following seizure of the railroads by President Wilson, Congress enacted detailed legislation regulating the mode of federal control. 40 Stat. 451 (1918).
When Congress was considering the statute authorizing the President to seize communications systems whenever he deemed such action necessary during the war, 40 Stat. 904 (1918), 47 U.S.C.A. § 63 note, Senator (later President) Harding opposed on the ground that there was no need for such stand-by powers because, in event of a presen necessity, the Chief Excutive 'ought to' seize communications lines, 'else he would be unfaithful to his duties as such Chief Executive.' 56 Cong.Rec. 9064 (1918).
53
48 Stat. 1689 (1933).
54
54 Stat. 2643 (1939).
55
55 Stat. 1647 (1941).
56
86 Cong.Rec. 11354 (1940) (Message of the President). See 39 Ops.Atty.Gen. 484 (1940). Attorney General Jackson's opinion did not extend to the transfer of 'Mosquito boats' solely because an express statutory prohibition on transfer was applicable.
57
87 Cong.Rec. 5868 (1941) (Message of the President).
58
Powers of the President to Send the Armed Forces Outside the United States, Report prepared by executive department for use of joint committee of Senate Committees on Foreign Relations and Armed Services, 82d Cong., 1st Sess., Committee Print 2 (1951).
59
Exec. Order 8773, 6 Fed.Reg. 2777 (1941).
60
See 89 Cong.Rec. 3992 (1943). The Attorney General also noted that the dispute at North American Aviation was Communist inspired and more nearly resembled an insurrection than a labor strike. The relative size of North American Aviation and the impact of an interruption in production upon our defense effort were not described.
61
87 Cong.Rec. 4932 (1941). See also S. 1600 and S. 2054, 77th Cong., 1st Sess. (1941).
62
Reps. May, Whittington; 87 Cong.Rec. 5895, 5972 (1941).
63
Reps. Dworshak, Feddis, Harter, Dirksen, Hook; 87 Cong.Rec. 5901, 5910, 5974, 5975 (1941).
64
The plant seizure amendment passed the Senate, but was rejected in the House after a Conference Committee adopted the amendment. 87 Cong.Rec. 6424 (1941).
65
Exec. Order 8868, 6 Fed.Reg. 4349 (1941); Exec. Order 8928, 6 Fed.Reg. 5559 (1941).
66
Exec. Order 9141, 7 Fed.Reg. 2961 (1942); Exec. Order 9220, 7 Fed.Reg. 6413 (1942); Exec. Order 9225, 7 Fed.Reg. 6627 (1942); Exec. Order 9254, 7 Fed.Reg. 8333 (1942); Exec. Order 9351, 8 Fed.Reg. 8097 (1943).
67
Exec. Order 9340, 8 Fed.Reg. 5695 (1943).
68
Exec. Order 9017, 7 Fed.Reg. 237 (1942); 1 Termination Report of the National War Labor Board 5—11.
69
89 Cong.Rec. 3807 (1943). Similar views of the President's existing power were expressed by Senators Lucas, Wheeler, Austin and Barkley. Id., at 3885—3887, 3896, 3992.
70
89 Cong.Rec. 3989—3992 (1943).
71
S. 796, 78th Cong., 1st Sess., §§ 12, 13 (1943), as passed by the House.
72
57 Stat. 163, 164 (1943).
73
40 Ops.Atty.Gen. 312 (1944). See also Hearings before House Select Committee to Investigate Seizure of Montgomery Ward & Co., 78th Cong., 2d Sess. 117—132 (1944).
74
39 Ops.Atty.Gen. 343, 347 (1939).
75
Note 60, supra.
76
Letter introduced in Hearings before Senate Committee on Labor and Public Welfare on S. 249, 81st Cong., 1st Sess. 232 (1949) pointing to the 'exceedingly great' powers of the President to deal with emergencies even before the Korea crisis.
77
Exec. Order 9438, 9 Fed.Reg. 4459 (1944).
78
H.R.Rep. No. 1904, 78th Cong., 2d Sess. 25 (1944) (the Committee divided along party lines).
79
Exec. Order 9508, 9 Fed.Reg. 15079 (1944).
80
United States v. Montgomery Ward & Co., 7 Cir., 1945, 150 F.2d 369, reversing D.C.N.D.Ill.1945, 58 F.Supp. 408. See also Ken-Rad Tube & Lamp Corp. v. Badeau, D.C.W.D.Ky.1944, 55 F.Supp. 193, 197—199, where the court held that a seizure was proper with or without express statutory authorization.
81
United States Policy in the Korean Crisis (1950), Dept. of State Pub. 3922.
82
15 Fed.Reg. 9029 (1950).
83
Harrison, This Country of Ours (1897), 98.
84
62 Stat. 604, 626 (1948), 50 U.S.C.App. (Supp. IV) § 468(c), 50 U.S.C.A.Appendix, § 468(c).
85
62 Stat. 604, 627 (1948), 50 U.S.C.App. (Supp. IV) § 468(h)(1), 50 U.S.C.A.Appendix, § 468(h)(1).
86
Tit. II, 64 Stat. 798 (1950), as amended 65 Stat. 138 (1951), 50 U.S.C.A.Appendix, § 2081.
87
Home Building & Loan Ass'n v. Blaisdell, 1934, 290 U.S. 398, 425—426, 54 S.Ct. 231, 235, 78 L.Ed. 413.
88
See Amalgamated Ass'n of Street, Electric Railway & Motor Coach Employees v. Wisconsin Board, 1951, 340 U.S. 383, 71 S.Ct. 359, 95 L.Ed. 364.
89
§§ 206—210, Labor Management Relations Act of 1947. 29 U.S.C. (Supp. IV) §§ 176—180, 29 U.S.C.A. §§ 176—180.
90
64 Stat. 812, 65 Stat. 132 (1950, 1951).
91
H.R.Rep. No. 3042, 81st Cong., 2d Sess. 35 (1950) (Conference Report). See also S.Rep. No. 2250, 81st Cong., 2d Sess. 41 (1950).
92
Exec. Order 10161, 15 Fed.Reg. 6105 (1950), as amended, Exec. Order 10233, 16 Fed.Reg. 3503 (1951), 50 U.S.C.A.Appendix, § 2071 note.
93
Hearings before the House Committee on Banking and Currency on Defense Production Act Amendments of 1951, 82d Cong., 1st Sess. 305—306, 312—313 (1951).
94
The Lucas Amendment to abolish the disputes function of the WSB was debated at length in the House, the sponsor of the amendment pointing out the similarity of the WSB functions to those of the War Labor Board and noting the seizures that occurred when War Labor Board orders were not obeyed. 97 Cong. 8390—8415. The amendment was rejected by a vote of 217 to 113. Id., at 8415. A similar amendment introduced in the Senate was withdrawn. 97 Cong.Rec. 7373—7374. The Defense Production Act was extended without amending Tit. V or otherwise affecting the disputes functions of the WSB. 65 Stat. 132 (1951).
95
Compare Sterling v. Constantin, 1932, 287 U.S. 378, 399 401, 53 S.Ct. 190, 195—196, 77 L.Ed. 375.
| 1213
|
343 U.S. 747
72 S.Ct. 967
96 L.Ed. 1270
ON LEEv.UNITED STATES.
No. 543.
Argued April 24, 1952.
Decided June 2, 1952.
Rehearing Denied Oct. 13, 1952.
See 73 S.Ct. 5.
Mr. Gilbert S. Rosenthal, New York City, for petitioner.
Mr. Robert S. Erdahl, Washington, D.C., for respondent.
Mr. Justice JACKSON delivered the opinion of the Court.
1
Petitioner was convicted on a two-count indictment, one charging the substantive offense of selling a pound of opium in violation of 21 U.S.C. §§ 173 and 174, 21 U.S.C.A. §§ 173, 174, the other conspiring to sell the opium in violation of 18 U.S.C. § 371, 18 U.S.C.A. § 371. The Court of Appeals sustained the conviction by a divided court.1 We granted certiorari.2
2
The questions raised by petitioner have been considered but only one is of enough general interest to merit discussion. That concerns admission in evidence of two conversations petitioner had, while at large on bail pending trial, with one Chin Poy. The circumstances are these:
3
Petitioner, On Lee, had a laundry in Hoboken. A customer's room opened on the street, back of it was a room for ironing tables, and in the rear were his living quarters. Chin Poy, an old acquaintance and former employee, sauntered in and, while customers came and went, engaged the accused in conversation in the course of which petitioner made incriminating statements. He did not know that Chin Poy was what the Government calls 'an undercover agent' and what petitioner calls a 'stool pigeon' for the Bureau of Narcotics. Neither did he know that Chin Poy was wired for sound, with a small microphone in his inside overcoat pocket and a small antenna running along his arm. Unbeknownst to petitioner, an agent of the Narcotics Bureau named Lawrence Lee had stationed himself outside with a receiving set properly tuned to pick up any sounds the Chin Poy microphone transmitted. Through the large front window Chin Poy could be seen and through the receiving set his conversation, in Chinese, with petitioner could be heard by agent Lee. A few days later, on the sidewalks of New York, another conversation took place between the two, and damaging admissions were again 'audited' by agent Lee.
4
For reasons left to our imagination, Chin Poy was not called to testify about petitioner's incriminating admissions. Against objection,3 however, agent Lee was allowed to relate the conversations as heard with aid of his receiving set. Of this testimony, it is enough to say that it was certainly prejudicial if its admission was improper.
5
Petitioner contends that this evidence should have been excluded because the manner in which it was obtained violates both the search-and-seizure provisions of the Fourth Amendment,4 and § 605 of the Federal Communications Act, 47 U.S.C. § 605, 47 U.S.C.A. § 605,5 and, if not rejected on those grounds, we should pronounce it inadmissible anyway under the judicial power to require fair play in federal law enforcement.
6
The conduct of Chin Poy and agent Lee did not amount to an unlawful search and seizure such as is proscribed by the Fourth Amendment. In Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322, we held that the action of federal agents in placing a detectaphone on the outer wall of defendant's hotel room, and thereby overhearing conversations held within the room, did not violate the Fourth Amendment. There the agents had earlier committed a trespass in order to install a listening device within the room itself. Since the device failed to work, the court expressly reserved decision as to the effect on the search-and-seizure question of a trespass in that situation. Petitioner in the instant case has seized upon that dictum, apparently on the assumption that the presence of a radio set would automatically bring him within the reservation if he can show a trespass.
7
But petitioner cannot raise the undecided question,for here no trespass was committed. Chin Poy entered a place of business with the consent, if not by the implied invitation, of the petitioner. Petitioner contends, however, that Chin Poy's subsequent 'unlawful conduct' vitiated the consent and rendered his entry a trespass ab initio.
8
If we were to assume that Chin Poy's conduct was unlawful and consider this argument as an original proposition, it is doubtful that the niceties of tort law initiated almost two and a half centuries ago by the case of the Six Carpenters, 8 Coke 146(a), cited by petitioner, are of much aid in determining rights under the Fourth Amendment. But petitioner's argument comes a quarter of a century too late: this contention was decided adversely to him in McGuire v. United States, 273 U.S. 95, 98, 100, 47 S.Ct. 259, 260, 261, 71 L.Ed. 556, where Mr. Justice Stone, speaking for a unanimous Court, said of the doctrine of trespass ab initio: 'This fiction, obviously invoked in support of a policy of penalizing the unauthorized acts of those who had entered under authority of law, has only been applied as a rule of liability in civil actions against them. Its extension is not favored.' He concluded that the Court would not resort to 'a fiction whose origin, history, and purpose do not justify its application where the right of the government to make use of evidence is involved.' This was followed in Zap v. United States, 328 U.S. 624, 629, 66 S.Ct. 1277, 1279, 90 L.Ed. 1477.
9
By the same token, the claim that Chin Poy's entrance was a trespass because consent to his entry was obtained by fraud must be rejected. Whether an entry such as this, without any affirmative misrepresentation, would be a trespass under orthodox tort law is not at all clear. See Prosser on Torts, § 18. But the rational of the McGuire case rejects such fine-spun doctrines for exclusion of evidence. The further contention of petitioner that agent Lee, outside the laundry, was a trespasser because by these aids he overheard what went on inside verges on the frivolous. Only in the case of physical entry, either by force, as in McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153, by unwilling submission to authority, as in Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436, or without any express or implied consent, as in Nueslein v. District of Columbia, 73 App.D.C. 85, 115 F.2d 690, would the problem left undecided in the Goldman case be before the Court.
10
Petitioner relies on cases relating to the more common and clearly distinguishable problems raised where tangible property is unlawfully seized. Such unlawful seizure may violate the Fourth Amendment, even though the entry itself was by subterfuge or fraud rather than force. United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93; Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (the authority of the latter case is sharply limited by Olmstead v. United States, 277 U.S. 438, at page 463, 48 S.Ct. 564, at page 567, 72 L.Ed. 944). But such decisions are inapposite in the field of mechanical or electronic devices designed to overhear or intercept conversation, at least where access to the listening post was not obtained by illegal methods.
11
Petitioner urges that if his claim of unlawful search and seizure cannot be sustained on authority, we reconsider the question of Fourth Amendment rights in the field of overheard or intercepted conversations. This apparently is upon the theory that since there was a radio set involved, he could succeed if he could persuade the Court to overturn the leading case holding wiretapping to be outside the ban of the Fourth Amendment, Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944, and the cases which have followed it. We need not consider this, however, for success in this attempt, which failed in Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322, would be of no aid to petitioner unless he can show that his situation should be treated as wretapping. The presence of a radio set is not sufficient to suggest more than the most attenuated analogy to wiretapping. Petitioner was talking confidentially and indiscreetly with one he trusted, and he was overheard. This was due to aid from a transmitter and receiver, to be sure, but with the same effect on his privacy as if agent Lee had been eavesdropping outside an open window. The use of bifocals, field glasses or the telescope to magnify the object of a witness' vision is not a forbidden search or seizure, even if they focus without his knowledge or consent upon what one supposes to be private indiscretions. It would be a dubious service to the genuine liberties protected by the Fourth Amendment to make them bedfellows with spurious liberties improvised by farfetched analogies which would liken eavesdropping on a conversation, with the connivance of one of the parties, to an unreasonable search or seizure. We find no violation of the Fourth Amendment here.
12
Nor do the facts show a violation of § 605 of the Federal Communications Act. Petitioner had no wires and no wireless. There was no interference with any communications facility which he possessed or was entitled to use. He was not sending messages to anybody or using a system of communications within the Act. Goldstein v. United States, 316 U.S. 114, 62 S.Ct. 1000, 86 L.Ed. 1312.
13
Finally, petitioner contends that even though he be overruled in all else, the evidence should be excluded as a means of disciplining law enforcement officers. Cf. McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819. In McNabb, however, we held that, where defendants had been unlawfully detained in violation of the federal statute requiring prompt arraignment before a commissioner, a confession made during the detention would be excluded as evidence in federal courts even though not inadmissible on the ground of any otherwise involuntary character. But here neither agent nor informer violated any federal law; and violation of state law, even had it been shown here, as it was not, would not render the evidence obtained inadmissible in federal courts. Olmstead v. United States, 277 U.S. 438, at page 468, 48 S.Ct. 564, 569, 72 L.Ed. 944.
14
In order that constitutional or statutory rights may not be undermined, this Court has on occasion evolved or adopted from the practice of other courts exclusionary rules of evidence going beyond the requirements of the constitutional or statutory provision. McNabb v. United States, supra; Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652. In so doing, it has, of course, departed from the common-law rule under which otherwise admissible evidence was not rendered inadmissible by the fact that it had been illegally obtained. Such departures from the primary evidentiary criteria of relevancy and trustworthiness must be justified by some strong social policy. In discussing the extension of such rules, and the creation of new ones, it is well to remember the remarks of Mr. Justice Stone in McGuire Guire v. United States, 273 U.S. 95, at page 99, 47 S.Ct. 259, at page 260, 71 L.Ed. 556: 'A criminal prosecution is more than a game in which the government may be checkmated and the game lost merely because its officers have not played according to rule.'
15
Rules of evidence, except where prescribed by statute, are formulated by the courts to some extent, as 'a question of sound policy in the administration of the law.' Zucker v. Whitridge, 205 N.Y. 50, 65, 98 N.E. 209, 213, 41 L.R.A., N.S., 683. Courts which deal with questions of evidence more frequently than we do have found it unwise to multiply occasions when the attention of a trial court in a criminal case must be diverted from the issue of the defendant's guilt to the issue of someone else's misconduct in obtaining evidence. They have considered that 'The underlying principle obviously is that the court, when engaged in trying a criminal cause, will not take notice of the manner in which witesses have possessed themselves of papers or other articles of personal property which are material and properly offered in evidence.' People v. Adams, 176 N.Y. 351, 358, 68 N.E. 636, 638, 63 L.R.A. 406. However, there is a procedure in federal court by which defendant may protect his right in advance of trial to have returned to him evidence unconstitutionally obtained. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319. But since we hold here that there was no violation of the Constitution, such a remedy could not be invoked. Exclusion would have to be based on a policy which placed the penalizing of Chin Poy's breach of confidence above ordinary canons of relevancy. For On Lee's statements to Chin Poy were admissions against interest provable against him as an exception to the hearsay rule. The normal manner of proof would be to call Chin Poy and have him relate the conversation. We can only speculate on the reasons why Chin Poy was not called. It seems a not unlikely assumption that the very defects of character and blemishes of record which made On Lee trust him with confidences would make a jury distrust his testimony. Chin Poy was close cnough to the underworld to serve as bait, near enough the criminal design so that petitioner would embrace him as a confidante, but too close to it for the Government to vouch for him as a witness. Instead, the Government called agent Lee. We should think a jury probably would find the testimony of agent Lee to have more probative value than the word of Chin Poy.
16
Society can ill afford to throw away the evidence produced by the falling out, jealousies, and quarrels of those who live by outwitting the law. Certainly no one would foreclose the turning of state's evidence by denizens of the underworld. No good reason of public policy occurs to us why the Government should be deprived of the benefit of On Lee's admissions because he made them to a confidante of shady character.
17
The trend of the law in recent years has been to turn away from rigid rules of incompetence, in favor of admitting testimony and allowing the trier of fact to judge the weight to be given it. As this Court has pointed out: "Indeed, the theory of the common law was to admit to the witness stand only those presumably honest, appreciating the sanctity of an oath, unaffected as a party by the result, and free from any of the temptations of interest. The courts were afraid to trust the intelligence of jurors. But the last 50 years have wrought a great change in these respects, and today the tendency is to enlarge the domain of competency, and to submit to the jury for their consideration as to the credibility of the witness those matters which heretofore were ruled sufficient to justify his exclusion. This change has been wrought partially by legislation and partially by judicial construction." Funk v. United States, 290 U.S. 371, 376, 54 S.Ct. 212, 213, 78 L.Ed. 369.
18
The use of informers, accessories, accomplices, false friends, or any of the other betrayals which are 'dirty business' may raise serious questions of credibility. To the extent that they do, a defendant is entitled to broad latitude to probe credibility by cross-examination and to have the issues submitted to the jury with careful instructions. But to the extent that the argument for exclusion departs from such orthodox evidentiary canons as relevancy and credibility, it rests solely on the proposition that the Government shall be arbitrarily penalized for the low morals of its informers. However unwilling we as individuals may be to approve conduct such as that of Chin Poy, such disapproval must not be thought to justify a social policy of the magnitude necessary to arbitrarily exclude otherwise relevant evidence. We think the administration of justice is better served if stratagems such as we have here are regarded as raising, not questions of law, but issues of credibility. We cannot say that testimony such asthis shall, as a matter of law, be refused all hearing.
19
Jud gment affirmed.
20
Mr. Justice BLACK believes that in exercising its supervisory authority over criminal justice in the federal courts, see McNabb v. United States, 318 U.S. 332, 341, 63 S.Ct. 608, 613, 87 L.Ed. 819, this Court should hold that the District Court should have rejected the evidence here challenged.
21
Mr. Justice FRANKFURTER, dissenting.
22
The law of this Court ought not to be open to the just charge of having been dictated by the 'odious doctrine,' as Mr. Justice Brandeis called it, that the end justifies reprehensible means. To approve legally what we disapprove morally, on the ground of practical convenience, is to yield to a short-sighted view of practicality. It derives from a preoccupation with what is episodic and a disregard of long-run consequences. The method by which the state chiefly exerts an influence upon the conduct of its citizens, it was wisely said by Archbishop William Temple, is 'the moral qualities which it exhibits in its own conduct.'
23
Loose talk about war against crime too easily infuses the administration of justice with the psychology and morals of war. It is hardly conductive to the soundest employment of the judicial process. Nor are the needs of an effective penal code seen in the truest perspective by talk about a criminal prosecution's not being a game in which the Government loses because its officers have not played according to rule. Of course criminal prosecution is more than a game. But in any event it should not be deemed to be a dirty game in which 'the dirty business' of criminals is outwitted by 'the dirty business' of law officers. The contrast between morality professed by society and immorality practiced on its behalf makes for contempt of law. Respect for law cannot be turned off and on as though it were a hot-water faucet.
24
It is a quarter century since this Court, by the narrowest margin, refused to put wiretapping beyond the constitutional pale where a fair construction of the Fourth Amendment should properly place it. Since then, instead of going from strength to strength in combatting crime, we have gone from inefficiency to inefficiency, from corruption to corruption. The moral insight of Mr. Justice Brandeis unerringly foresaw this inevitability. 'The progress of science in furnishing the government with means of espionage is not likely to stop with wire tapping. Ways may some day be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions.' Olmstead v. United States, 277 U.S. 438, 471, 474, 48 S.Ct. 564, 571, 72 L.Ed. 944. The circumstances of the present case show how the rapid advances of science are made available for that police intrusion into our private lives against which the Fourth Amendment of the Constitution was set on guard.
25
It is noteworthy that although this Court deemed wiretapping not outlawed by the Constitution, Congress outlawed it legislatively by the Communications Act of 1934, 42 Stat. 1064, 1103, 47 U.S.C. § 605, 47 U.S.C.A. § 605; Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314; Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307. What is perhaps even more noteworthy is its pervasive disregard in practice by those who as law officers owe special obedience to law. What is true of the federal Act against wiretapping and its violations is widely true of related state legislation and its disobedience. See Westin, The Wire-Tapping Problem, 52 Col.L.Rev. 165 (1952). Few sociological generalizations are more valid than that lawlessness begets lawlessness.
26
The members of this Court who so vigorously urged that wiretapping is within the clear scope of the prohibition of the Fourth Amendment were no sentimetalists about crime or criminals. Mr. Justice Holmes, Mr. Just ice Brandeis, Mr. Justice Butler and Chief Justice Stone were no softies. In all matters of social policy we have to choose, and it was the hardy philosophy of life that his years in the Army of the Potomac taught him that led Mr. Justice Holmes to deem it 'a less evil that some criminals should escape than that the Government should play an ignoble part.' Olmstead v. United States, supra, 277 U.S. at page 470, 48 S.Ct. at page 575.
27
Suppose it be true that through 'dirty business' it is easier for prosecutors and police to bring an occasional criminal to heel. It is most uncritical to assume that unless the Government is allowed to practice 'dirty business' crime would become rampant or would go unpunished.
28
In the first place, the social phenomena of crime are imbedded in the texture of our society. Equally deepseated are the causes of all that is sordid and ineffective in the administration of our criminal law. These are outcroppings, certainly in considerable part, of modern industrialism and of the prevalent standards of the community, related to the inadequacy in our day of early American methods and machinery for law enforcement and to the small pursuit of scientific inquiry into the causes and treatment of crime.
29
Of course we cannot wait on the slow progress of the sociological sciences in illuminating so much that is still dark. Nor should we relax for a moment vigorous enforcement of the criminal law until society, by its advanced civilized nature, will beget an atmosphere and environment in which crime will shrink to relative insignificance. Mr. deepest feeling against giving legal sanction to such 'dirty business' as the record in this case discloses is that it makes for lazy and not alert law enforcement. It puts a premium on force and fraud, not on imagination and enterprise and professional training. The third degree, search without warrant, wiretapping and the like, were not tolerated in what was probably the most successful administration in our time of the busiest United States Attorney's office. This experience under Henry L. Stimson in the Southern District of New York, compared with happenings elsewhere, doubtless planted in me a deep conviction that these short-cuts in the detection and prosecution of crime are as self-defeating as they are immoral.
30
Sir James Fitzjames Stephen brings significant testimony on this point:
31
'During the discussions which took place on the Indian Code of Criminal Procedure in 1872 some observations were made on the reasons which occasionally lead native police officers to apply torture to prisoners. An experienced civil officer observed, 'There is a great deal of laziness in it. It is far pleasanter to sit comfortably in the shade rubbing red pepper into a poor devil's eyes than to go about in the sun hunting up evidence.' This was a new view to me, but I have no doubt of its truth.' 1 Stephen, A History of the Criminal Law of England (1883), 442 note. Compare §§ 25 and 26 of the Indian Evidence Act (1872).
32
And Fitzjames Stephen, who acted on this experience in drawing the Indian Evidence Act, was no softie, either before be became a judge or on the bench.
33
Accordingly I adhere to the views expressed in Goldman v. United States, 316 U.S. 129, 136, 62 S.Ct. 993, 996, 86 L.Ed. 1322, that the Olmstead case should be overruled for the reasons set forth in the dissenting opinions in that case. These views have been strongly underlined by the steady increase of lawlessness on the part of law officers, even after Congress has forbidden what the dissenters in Olmstead found the Constitution to forbid.
34
Even on the basis of the prior decisions of this Court, however, I feel bound to dissent. The Court seems not content with calling a halt at the place it had reached on what I deem to be the wrong road. As my brother BURTON shows, the Court now pushes beyond the lines of legality heretofore drawn. Such encouragement to lazy, immora conduct by the police does not bode well for effective law en forcement. Nor will crime be checked by such means.
35
Mr. Justice DOUGLAS, dissenting.
36
The Court held in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944, over powerful dissents by Mr. Justice Holmes, Mr. Justice Brandeis, Mr. Justice Butler, and Chief Justice Stone that wire tapping by federal officials was not a violation of the Fourth and Fifth Amendments. Since that time the issue has been constantly stirred by those dissents and by an increasing use of wire tapping by the police. Fourteen years later in Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322, the issue was again presented to the Court. I joined in an opinion of the Court written by Mr. Justice Roberts, which adhered to the Olmstead case, refusing to overrule it. Since that time various aspects of the problem have appeared again and again in the cases coming before us. I now more fully appreciate the vice of the practices spawned by Olmstead and Goldman. Reflection on them has brought new insight to me. I now feel that I was wrong in the Goldman case. Mr. Justice Brandeis in his dissent in Olmstead espoused the cause of privacy—the right to be let alone. What he wrote is an historic statement of that point of view. I cannot improve on it.
37
'When the Fourth and Fifth Amendments were adopted, 'the form that evil had theretofore taken' had been necessarily simple. Force and violence were then the only means known to man by which a government could directly effect self-incrimination. It could compel the individual to testify—a compulsion effected, if need be, by torture. It could secure possession of his papers and other articles incident to his private life a seizure effected, if need be, by breaking and entry. Protection against such invasion of 'the sanctities of a man's home and the privacies of life' was provided in the Fourth and Fifth Amendments by specific language. Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 29 L.Ed. 746. But 'time works changes, brings into existence new conditions and purposes.' Subtler and more far-reaching means of invading privacy have become available to the government. Discovery and invention have made it possible for the government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.
38
'Moreover, 'in the application of a Constitution, our contemplation cannot be only of what has been, but of what may be.' The progress of science in furnishing the government with means of espionage is not likely to stop with wire tapping. Ways may some day be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions. 'That places the liberty of every man in the hands of every petty officer' was said by James Otis of much lesser intrusions than these. To Lord Camden a far slighter intrusion seemed 'subversive of all the comforts of society.' Can it be that the Constitution affords no protection against such invasions of individual security?
39
'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 valuded by civilized men. To protect, that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, mut be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.
40
'Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.' (277 U.S. 473, 48 S.Ct. 570.) That philosophy is applicable not only to a detectaphone placed against the wall or a mechanical device designed to record the sounds from telephone wires but also to the 'walky-talky' radio used in the present case. The nature of the instrument that science or engineering develops is not important. The controlling, the decisive factor is the invasion of privacy against the command of the Fourth and Fifth Amendments.
41
I would reverse this judgment. It is important to civil liberties that we pay more than lip service to the view that this manner of obtaining evidence against people is 'dirty business'. See Mr. Justice Holmes, dissenting, Olmstead v. United States, supra, 277 U.S. at page 470, 48 S.Ct. at page 575.
42
Mr. Justice BURTON, with whom Mr. Justice FRANKFURTER concurs, dissenting.
43
I agree with the dissenting opinion below that what Lee overheard by means of a radio transmitter surreptitiously introduced and operating, without warrant or consent, within petitioner's premises, should not have been admitted in evidence. The Fourth Amendment's protection against unreasonable searches and seizures is not limited to the seizure of tangible things. It extends to intangibles, such as spoken words. In applying the exclusionary rule of Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, we are primarily concerned with where and how the evidence is seized rather than what the evidence is. Cf. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319; United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93; Nueslein v. District of Columbia, 73 App.D.C. 85, 115 F.2d 690.
44
It seems clear that if federal officers without warrant or permission enter a house, under conditions amounting to unreasonable search, and there conceal themselves, the conversations they thereby overhear are inadmissible in a federal criminal action. It is argued that, in the instant case, there was no illegal entry because petitioner consented to Chin Poy's presence. This overlooks the fact that Chin Poy, without warrant and without petitioner's consent, took with him the concealed radio transmitter to which agent Lee's receiving set was tuned. For these purposes, that amounted to Chin Poy surreptitiously bringing Lee with him.
45
This Court has held generally that, in a federal criminal trial, a federal officer may testify to what he sees or hears take place within a house or room which he has no warrant or permission to enter, provided he sees or hears it outside of those premises. Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944. Cf. Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898. This holds true even where the officer supplements his hearing with a hearing aid, detectaphone or other device outside the premises. This merely enables him to hear more distinctly, where he is, what reaches him there from whereever it may come. He and his hearing aid pick up the sounds outside of, rather than within, the protected premises. Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322.
46
In the instant case, Chin Poy, who was lawfully in petitioner's room, could have testified as to what he, himself, saw or heard there. Yet, if he had been there unlawfully or surreptitiously, without warrant or consent, under conditions amounting to an unreasonable search, he should not be permitted in this proceeding, to testify even to that. Cf. Gouled v. United States, 255 U.. 298, 41 S.Ct. 261, 65 L.Ed. 647; Nueslein v. District of Col umbia, supra. Similarly, if Lee, under like conditions, without warrant and without authority, entered the room with Chin Poy and, while concealed, overheard petitioner's conversation with Chin Poy, Lee's testimony should be excluded. In substance, that is what took place here. Lee's overhearing of petitioner's statements was accomplished through Chin Poy's surreptitious introduction, within petitioner's laundry, of Lee's concealed radio transmitter which, without petitioner's knowledge or consent, there picked up petitioner's conversation and transmitted it to Lee outside the premises. The presence of the transmitter, for this purpose, was the presence of Lee's ear. While this test draws a narrow line between what is admissible and what is not, it is a clearly ascertainable line. It is determined by where the 'effects' are seized or, as here, where the words are picked up. In this case the words were picked up without warrant or consent within the constitutionally inviolate 'house' of a person entitled to protection there against unreasonable searches and seizures of his person, house, papers and effects. It is inevitable that the line be narrow between, on the one hand, the constitutional right of a person to be free from unreasonable searches and seizures and, on the other, the need for the effective prosecution of crime. Drawing the line is a continuing process. The important thing is that the direction of the line that emerges from successive cases be clear.
1
193 F.2d 306.
2
342 U.S. 941, 72 S.Ct. 560.
3
It seems probable that petitioner failed to properly object to agent Lee's testimony. Shortly after agent Lee began to testify, petitioner's counsel addressed the court: '* * * I would like to enter a general objection to testimony by this witness of conversations alleged to have been had between agent Gim and Gong not in the hearing of the defendant on trial or in his presence.' This objection is not even addressed to the testimony describing the conversation between On Lee and Chin Poy. Later, when agent
Lee started to describe the conversation between On Lee and Chin Poy, petitioner's counsel said, 'That is objected to. At best this is a general objection which is insufficient to preserve such a specific claim as violation of a constitutional provision in obtaining the evidence. Wigmore on Evidence, § 18(C)(1). Some jurisdictions recognize an exception to the rule that an overruled general objection cannot avail proponent on appeal in the case where it appears on the face of the evidence that it is admissible for no purpose whatever, or where the nature of the precise specific objection which could be made is readily discernible. Sparks v. Territory of Oklahoma, 8 Cir., 146 F. 371. But this exception is generally confined to the cases where such evidence was plainly irrelevant. Where, as in this case, the objection relies on collateral matter to show inadmissibility, and in addition the exclusionary rule to be relied on involves interpretation of the Constitution, the orthodox rule of evidence requiring specification of the objection is buttressed by the uniform policy requiring constitutional questions to be raised at the earliest possible stage in the litigation.
To call the objection a general one is to put it in the light most favorable to petitioner; later colloquy between counsel and court indicates that the intended ground of that objection was irrelevance. There were in addition motions to dismiss the indictment on each count, and to exclude certain other testimony, but no reference to the testimony here in question at the motion stage. There was no motion for a new trial, but there was a motion to set aside the verdict—but still no mention of the search—and seizure argument for exclusion. There is not even any mention of it in the statement of points to be relied on in the Court of Appeals. The Court of Appeals, however, does treat it fully, presumably under Rule 52(b) of the Rules of Criminal Procedure, 18 U.S.C., allowing the appellate court to notice 'plain error.' Though we think the Court of Appeals would have been within its discretion in refusing to consider the point, their having poassed on it leads us to treat the merits also.
4
'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.' U.S.Const., Amend. iv.
5
'* * * no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person * * *.'
| 01
|
343 U.S. 768
72 S.Ct. 1022
96 L.Ed. 1283
BROTHERHOOD OF RAILROAD TRAINMEN et al.v.HOWARD et al.
No. 458.
Argued and Submitted April 22, 1952.
Decided June 9, 1952.
Argued by Mr. Charles R. Judge, St. Louis, Mo., for petitioners.
Messrs. Joseph C. Waddy, Washington, D.C., Victor Packman, St. Louis, Mo., for respondent, Howard.
Submitted by Messrs. Eugene G. Nahler, St. Louis, Mo., James L. Homire, New York City, Cornelius H. Skinker, Jr., Alvn J. Baumann, St. Louis, Mo., for respondent, St. Louis-San Fr ancisco Ry. Co.
Mr. Justice BLACK delivered the opinion of the Court.
1
This case raises questions concerning the power of courts to protect Negro railroad employees from loss of their jobs under compulsion of a bargaining agreement which, to avoid a strike, the railroad made with an exclusively white man's union. Respondent Simon Howard, a Frisco1 train employee for nearly forty years, brought this action on behalf of himself and other colored employees similarly situated.
2
In summary the complaint alleged: Negro employees such as respondent constituted a group called 'train porters' although they actually performed all the duties of white 'brakemen'; the Brotherhood of Railroad Trainmen, bargaining representative of 'brakemen' under the Railway Labor Act,2 had for years used its influence in an attempt to eliminate Negro trainmen and get their jobs for white men who, unlike colored 'train porters,' were or could be members of the Brotherhood; on March 7, 1946, the Brotherhood finally forced the Frisco to agree to discharge the colored 'train porters' and fill their jobs with white men who, under the agreement, would do less work but get more pay. The complaint charged that the Brotherhood's 'discriminatory action' violated the train porter's rights under the Railway Labor Act and under the Constitution; that the agreement was void because against public policy, prejudicial to the public interest, and designed to deprive Negro trainmen of their right to earn a livelihood because of their race or color. The prayers were that the court adjudge and decree that the contract was void and unenforceable for the reasons stated; that the Railroad be 'enjoined from discontinuing the jobs known as Train Porters' and 'from hiring white Brakemen to replace or displace plaintiff and other Train Porters as planned in accordance with said agreement.'
3
The facts as found by the District Court, affirmed with emphasis by the Court of Appeals, substantially established the truth of the complaint's material allegations. These facts showed that the Negro train porters had for a great many years served the Railroad with loyalty, integrity and efficiency; that 'train porters' do all the work of brakemen;3 that the Government administrator of railroads during World War I had classified them as brakemen and had required that they be paid just like white brakemen; that when the railroads went back to their owners, they redesignated these colored brakemen as 'train porters,' 'left their duties untouched,' and forced them to accept wages far below those of white 'brakemen' who were Brotherhood members; that for more than a quarter of a century the Brotherhood and other exclusively white rail unions had continually carried on a program of aggressive hostility to employment of Negroes for train, engine and yard service; that the agreement of March 7, 1946, here under attack, provides that train porters shall no longer do any work 'generally recognized as brakeman's duties'; that while this agreement did not in express words compel discharge of 'train porters,' the economic unsoundness of keeping them after transfer of their 'brakemen' functions made complete abolition of the 'train porter' group inevitable; that two days after 'the Carriers, reluctantly, and as a result of the strike threats' signed the agreement, they notified train porters that 'Under this agreement we will, effective April 1, 1946, discontinue all train porter positions.' Accordingly, respondent Howard, and others, were personally notified to turn in their switch keys, lanterns, markers and other brakemen's equipment, and notices of job vacancies were posted to be bid in by white brakemen only.
4
The District Court held that the complaint raised questions which Congress by the Railway Labor Act had made subject to the exclusive jurisdiction of the National Mediation Board and the National Railroad Adjustment Board. 72 F.Supp. 695. The Court of Appeals reversed this holding.4 It held that the agreement, as construed and acted upon by the Railroad, was an 'attempted predatory appropriation' of the 'train porters" jobs, and was to this extent illegal and unenforceable. It therefore ordered that the Railroad must keep the 'train porters' as employees; it permitted the Railroad and the Brotherhood to treat the contract as valid on condition that the Railroad would recognize the colored 'train porters' as members of the craft of 'brakemen' and that the Brotherhood would fairly represent them as such. 191 F.2d 442. We granted certiorari. 342 U.S. 940, 72 S.Ct. 551.
5
While different in some respects, the basic pattern of racial discrimination in this case is much the same as that we had to consider in Steele v. Louisville & N.R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173. In this case, as was charged in the Steele case, a Brotherhood acting as a bargaining agent under the Railway Labor Act has been hostile to Negro employees, has discriminated against them, and has forced the Railroad to make a contract which would help Brotherhood members take over the jobs of the colored 'train porters.'
6
There is a difference in the circumstances of the two cases, however, which it is contended requires us to deny the judicial remedy here that was accorded in the Steele case. That difference is this: Steele was admittedly a locomotive fireman although not a member of the Brotherhood of Locomotive Firemen and Enginemen which under the Railway Labor Act was the exclusive bargaining representative of the entire craft of firemen. We held that the language of the Act imposed a duty on the craft bargaining representative to exercise the power conferred upon it in behalf of all those for whom it acts, without hostile discrimination against any of them. Failure to exercise this duty was held to give rise to a cause of action under the Act. In this case, unlike the Steele case, the locored employees have for many years been treated by the carriers and the Brotherhood as a separate class for representation purposes and have in fact been represented by another union of their own choosing. Since the Brotherhood has discriminated against 'train porters' instead of minority members of its own 'craft,' it is argued that the Brotherhood owed no duty at all to refrain from using its statutory bargaining power so as to abolish the jobs of the colored porters and drive them from the railroads. We think this argument is unsound and that the opinion in the Steele case points to a breach of statutory duty by this Brotherhood.
7
As previously noted, these train porters are threatened with loss of their jobs because they are not white and for no other reason. The job they did hold under its old name would be abolished by the agreement; their color alone would disqualify them for the old job under its new name. The end result of these transactions is not in doubt; for precisely the same rasons as in the Steele case 'discriminations based on race alone are obviously irrelevant and invidious. Congress plainly did not undertake to authorize the bargaining representative to to make such discriminations.' Steele v. Louisville & N.R. Co., supra 323 U.S. at 203, 65 S.Ct. at page 232, 89 L.Ed. 173, and cases there cited. Cf. Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161. The Federal Act thus prohibits bargaining agents it authorizes from using their position and power to destroy colored workers' jobs in order to bestow them on white workers. And courts can protect those threatened by such an unlawful use of power granted by a federal act.
8
Here, as in the Steele case, colored workers must look to a judicial remedy to prevent the sacrifice or obliteration of their rights under the Act. For no adequate administrative remedy can be afforded by the National Railroad Adjustment or Mediation Board. The claims here cannot be resolved by interpretation of a bargaining agreement so as to give jurisdiction to the Adjustment Board under our holding in Slocum v. Delaware, L. & W.R. Co., 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795. This dispute involves the validity of the contract, not its meaning. Nor does the dispute hinge on the proper craft classification of the porters so as to call for settlement by the National Mediation Board under our holding in Switchmen's Union v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61. For the contention here with which we agree is that the racial discrimination practiced is unlawful, whether colored employees are classified as 'train porters,' 'brakemen,' or something else. Our conclusion is that the District Court has jurisdiction and power to issue necessary injunctive orders notwithstanding the provisions of the Norris-LaGuardia Act.5 We need add nothing to what was said about inapplicability of that Act in the Steele case and in Graham v. Brotherhood of Firemen, 338 U.S. 232, 239—240, 70 S.Ct. 14, 18, 94 L.Ed. 22.
9
Bargaining agents who enjoy the advantages of the Railway Labor Act's provisions must execute their trust without lawless invasions of the rights of other workers. We agree with the Court of Appeals that the District Court had jurisdiction to protect these workers from the racial discrimination practiced against them. On remand, the District Court should permanently enjoin the Railroad and the Brotherhood from use of the contract or any other similar discriminatory bargaining device to oust the train porters from their jobs. In fashioning its decree the District Court is left free to consider what provisions are necessary to afford these employees full protection from future discriminatory practices of the Brotherhood. However, in drawing its decree, the District Court must bear in mind that disputed questions of reclassification of the craft of 'train porters' are committed by the Railway Labor Act to the National Mediation Board. Switchmen's Union v. National Mediation Board, supra.
10
The judgment of the Court of Appeals reversing that of the District Court is affirmed, and the cause is remanded to the District Court for further proceedings in accordance with this opinion.
11
It is so ordered.
12
Mr. Justice MINTON, with whom The CHIEF JUSTICE and Mr. Justice REED join, dissenting.
13
The right of the Brotherhood to represent railroad employees existed before the Railway Labor Act was passed. The Act simply protects the employees when this right of representation is exercised. If a labor organization is designated by a majority of the employees in a craft or class as bargaining representative for that craft or class and is so recognized by the carrier, that labor organization has a duty to represent in good faith all workers of the craft. Steele v. Louisville & N.R. Co., 323 U.S. 192, 202, 65 S.Ct. 226, 231, 89 L.Ed. 173. In the Steele case, the complainant was a locomotive fireman; his duies were wholly those of a fireman. The Brotherhood in that cause represented the 'firemen's craft,' but would not admit Steele as a member because he was a Negro. As the legal representative of his craft of firemen, the Brotherhood made a contract with the carrier that discriminated against him because of his race. This Court held the contract invalid. It would have been the same if the Brotherhood had discriminated against him on some other ground, unrelated to race. It was the Brotherhood's duty 'to act on behalf of all the employees which, by virtue of the statute, it undertakes to represent.' Steele, supra, 323 U.S. at page 199, 65 S.Ct. at page 230, 89 L.Ed. 173.
14
In the instant case the Brotherhood has never purported to represent the train porters. The train porters have never requested that the Brotherhood represent them. Classification of the job of 'train porter' was established more than forty years ago and has never been disputed. At that time, the principal duties of the train porters were cleaning the cars, assisting the passengers, and helping to load and unload baggage; only a small part of the duties were those of brakemen, who were required to have higher educational qualifications. As early as 1921, the train porters organized a separate bargaining unit through which they have continuously bargained with the carrier here involved; they now have an existing contract with this carrier. Although the carriers gradually imposed upon the train porters more of the duties of brakemen until today most of their duties are those of brakemen, they have never been classified as brakemen.
15
The majority does not say that the train porters are brakemen and therefore the Brotherhood must represent them fairly, as was held in Steele. Whether they belong to the Brotherhood is not determinative of the latter's duties of representation, if it represents the craft of brakemen and if the train porters are brakemen. Steele was not a member of the Brotherhood of Locomotive Firemen and Enginemen and could not be because of race—the same reason that the train porters cannot belong to the Brotherhood of Trainmen. But Steele was a fireman, while the train porters are not brakemen.
16
The Brotherhood stoutly opposes the contention that it is the representative of the train porters. For the Court so to hold would be to fly in the face of the statute (45 U.S.C. § 152, Ninth, 45 U.S.C.A. § 152 Subd. 9) and the holding of this Court in General Committee v. Missouri-K.-T.R. Co., 320 U.S. 323, 334—336, 64 S.Ct. 146, 151—152, 88 L.Ed. 76.* The majority avoids the dispute in terms but embraces it in fact by saying it is passing on the validity of the contract. If this is true, it is done at the instance of persons for whom the Brotherhood was not contracting and was under no duty to contract. The train porters had a duly elected bargaining representative, which fact operated to exclude the Brotherhood from representing the craft. Steele, supra, 323 U.S. at page 200, 65 S.Ct. at page 231, 89 L.Ed. 173. Virginian R. Co. v. System Federation, 300 U.S. 515, 548, 57 S.Ct. 592, 599, 81 L.Ed. 789.
17
The majority reaches out to invalidate the contract, not because the train porters are brakemen entitled to fair representation by the Brotherhood, but because they are Negroes who were discriminated against by the carrier at the behest of the Brotherhood. I do not understand that private parties such as the carrier and the Brotherhood may not discriminate on the ground of race. Neither a state government nor the Federal Government may do so, but I know of no applicable federal law which says that private parties may not. That is the whose problem underlying the proposed Federal Fair Employment Practices Code. Of course, this Court by sheer power can say this case is Steele, or even lay down a code of fair employment practices. But sheerpower is not a substitute for legality. I do not have to agree with the discrimination here indulged in to question the legality of today's decision.
18
I think there was a dispute here between employees of the carrier as to whether the Brotherhood was the representative of the train porters, and that this is a matter to be resolved by the National Mediation Board, not the courts. I would remand this case to the District Court to be dismissed as nonjusticiable.
1
St. Louis-San Francisco Railway Company and its subsidiary St. Louis-San Francisco & Texas Railway Company.
2
44 Stat. 577, as amended, 48 Stat. 1185, 45 U.S.C. § 151 et seq., 45 U.S.C.A. § 151 et seq.
3
In addition to doing all the work done by ordinary brakemen, train porters have been required to sweep the coaches and assist passengers to get on and off the trains. As the Court of Appeals noted, 'These aisle-sweeping and passenger-assisting tasks, however, are simply minor and incidental, occupying only, as the record shows, approximately five per cent of a train porter's time.' 191 F.2d 442, 444.
4
One part of the District Court's order was affirmed. The Court of Appeals held that the District Court had properly enjoined the Railroad from abolishing the position of 'train porters' under the notices given, on the ground that these notices were insufficient to meet the requirements of § 2, Seventh, and § 6 of the Railway Labor Act. The view we take makes it unnecessary for us to consider this question.
5
47 Stat. 70, 29 U.S.C. § 101 et seq., 29 U.S.C.A. § 101 et seq.
*
'Nor does § 2, Second make justiciable what otherwise is not. It provides that 'All disputes between a carrier or carriers and its or their employees shall be considered, and, if possible, decided, with all expedition, in conference between representatives designated and authorized so to confer, respectively, by the carrier or carriers and by the employees thereof interested in the dispute.' As we have already pointed out, § 2, Ninth, after providing for a certification by the Mediation Board of the particular craft or class representative, states that 'the carrier shall treat with the representative so certified as the representative of the craft or class for the purpose of this Act.'
'It is clear from the legislative history of § 2, Ninth that it was designed not only to help free the unions from the influence, coercion and control of the carriers but also to resole a wide range of jurisdictional disputes between unions or be tween groups of employees. H.Rep.No.1944, supra, p. 2; S.Rep.No.1065, 73d Cong., 2d Sess., p. 3. However wide may be the range of jurisdictional disputes embraced within § 2, Ninth, Congress did not select the courts to resolve them.'
| 12
|
343 U.S. 808
72 S.Ct. 999
96 L.Ed. 1317
CASEY et al.v.UNITED STATES.
No. 379.
Submitted March 3, 1952.
Decided June 9, 1952.
Mr. F. M. Reischling, Seattle, Wash., for petitioner.
Messrs. Philip B. Perlman, Sol. Gen., Washington, D.C., James M. McInerney, Asst. Atty. Gen., James L. Morrison, Miss Beatrice Rosenberg, and Mr. Murry Lee Randall, Washington, D.C., for respondent.
PER CURIAM.
1
The controlling claim in this case is that there was an unreasonable search and seizure of evidence, the admission of which vitiated the convictions. Before determining these issues conflicting views as to the facts in this case and the inferences to be drawn from them would have to be resolved. The Solicitor General confesses error and asks that the judgment below should be reversed as to all the petitioners, leaving of course the way open for a new trial. To accept in this case his confession of error would not involve the establishment of any precedent.
2
Accordingly we reverse the judgment as to all the petitioners.
3
Mr. Justice DOUGLAS, with whom The CHIEF JUSTICE and Mr. Justice REED join, dissenting.
4
I do not believe we should take our law from the Department of Justice or from any other litigant. The reasons why the Department of Justice confesses error in a case may be wholly honorable. For example, those in the Solicitor General's office may be honestly converted to the point of view which their colleagues opposed below. I assume that is true in the present case. But I also know that litigants usually have selfish purposes. What the motivation behind a particular confession of error may be will seldom be known. We cannot become a paty to it without serving the unknown cause of the litigant. The practice in cases in which the Solicitor General confesses error was settled by Young v. United States, 1942, 315 U.S. 257, 62 S.Ct. 510, 86 L.Ed. 832. When the Government confessed error on Young's petition for certiorari, the confession was not accepted but, instead, the petition was granted and the case set down for argument. 1941, 314 U.S. 595, 62 S.Ct. 59, 86 L.Ed. 480. In the unanimous opinion of the Court, two Justices not participating, the function of this Court upon the Government's confession of error was described with particularity:
5
'The public trust reposed in the law enforcement officers of the Government requires that they be quick to confess error when, in their opinion, a miscarriage of justice may result from their remaining silent. But such a confession does not relieve this Court of the performance of the judicial function. The considered judgment of the law enforcement officers that reversible error has been committed is entitled to great weight, but our judicial obligations compel us to examine independently the errors confessed. See Parlton v. United States, 64 App.D.C. 169, 75 F.2d 772. The public interest that a result be reached which promotes a well-ordered society is foremost in every criminal proceeding. That interest is entrusted to our consideration and protection as well as that of the enforcing officers. Furthermore, our judgments are precedents, and the proper administration of the criminal law cannot be left merely to the stipulation of parties. Cf. Rex v. Wilkes, 4 Burr. 2527, 2551, 98 Eng.Rep. 327; State v. Green, 167 Wash. 266, 9 P.2d 62.' 315 U.S. at 258—259, 62 S.Ct. at page 511, 86 L.Ed. 832.
6
As a result, the Court proceeded to examine the errors urged by petitioner and, upon consideration of the record, reversed the judgment of the Court of Appeals.1
7
The principles announced in Young v. United States, supra, were expressly reaffirmed in Gibson v. United States, 1946, 329 U.S. 338, 344, 67 S.Ct. 301, 304, 91 L.Ed. 331, cf. Marino v. Ragen, 1947, 332 U.S. 561, 562, 68 S.Ct. 240, 241, 92 L.Ed. 170.2 Moreover, the practice of this Court in cases in which the Solicitor General confesses error has followed the Young rule. Unlike today's per curiam, our recent per curiam orders and opinions have been careful to note that our reversal of a court of appeals judgment is based upon consideration of the record, not blind acceptance of a confession of error.3
8
We sit in this cse not to enforce the requests of the Department of Justice but to review the action of a lower court. Here the Court of Appeals ruled that petitioners had no standing to complain of the search. That ruling is questionable in view of the intervening decision of this Court in United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93. But the confession of error is not limited to that ruling. The Department of Justice now maintains that the District Court was in error in ruling in the government's favor on the issue of search and seizure.
9
The facts are not in dispute. The only question is the reach of our decision in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. That decision states a principle of constitutional law. Until it is reversed or modified, it prescribes a rule for the courts to apply according to their best lights, not according to the desires of either the prosecution or the defense.
10
Since the Court of Appeals did not reach that issue when the case was before it, we should at the very least remand the case to it for consideration of that question. If we are to decide it, we should do so only after full exploration of the facts and the law. Whatever action we take is a precedent.
11
I cannot state too strongly my belief that if the courts are to retain their independence, they must decide cases taken on the merits. A confession of error by a litigant is, of course, an important factor to take into account in studying a record.4 It may disclose an intervening decision on a question of law that undermines the lower court's conclusion; it may disclose perjury by an important witness or newly discovered evidence; it may disclose other factors which weaken the conclusion of the lower court. Or it may disclose a maneuver to save one case at the expense of another.5 Once we accept a confession of error at face value and make it the controlling and decisive factor in our decision, we no longer administer a system of justice under a government of laws.
1
During the same term of Court as Young v. United States, supra, the Government also confessed error in Weber v. United States. The Court granted certiorari, 1941, 314 U.S. 600, 62 S.Ct. 125, 86 L.Ed. 483, heard argument, and affirmed the Court of Appeals judgment by an equally divided Court. 1942, 315 U.S. 787, 62 S.Ct. 911, 86 L.Ed. 1192.
2
In Upshaw v. United States, 1948, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100, the Government had confessed error in the Court of Appeals for the District of Columbia. That court, adhering to its precedent in Parlton v. United States, 1935, 64 App.D.C. 169, 75 F.2d 772, cited with approval in Young v. United States, supra, 315 U.S. at page 259, 62 S.Ct. at page 511, 86 L.Ed. 832, conducted an independent examination of the errors confessed. 1948, 83 U.S.App.D.C. 207, 168 F.2d 167. This Court reversed in a 5—4 decision without suggesting that the Court of Appeals had erred in considering the merits of the Government's position.
3
Cates v. Haderlein, 1951, 342 U.S. 804, 72 S.Ct. 47; Chiarella v. United States, 1951, 341 U.S. 946, 71 S.Ct. 1004, 95 L.Ed. 1370; Ryles v. United States, 1949, 336 U.S. 949, 69 S.Ct. 882, 93 L.Ed. 1104; Bellaskus v. Crossman, 1948, 335 U.S. 840, 69 S.Ct. 64, 93 L.Ed. 391; Fogel v. United States, 1948, 335 U.S. 865, 69 S.Ct. 136, 93 L.Ed. 411; Wixman v. United States, 1948, 335 U.S. 874, 69 S.Ct. 233, 93 L.Ed. 417; Mogall v. United States, 1948, 333 U.S. 424, 68 S.Ct. 487, 92 L.Ed. 783.
4
Similarly, the fact that the Solicitor General does not oppose the granting of a petition for certiorari is entitled to respect, see, e.g., Wong Yang Sung v. McGrath, 1950, 339 U.S. 33, 36, 70 S.Ct. 445, 447, 94 L.Ed. 616. But it has never followed that we should automatically grant certiorari because of the Government's consent to such action. E.g., Community Services, Inc. v. United States, 1952, 342 U.S. 932, 72 S.Ct. 375 (certiorari denied); Dollar v. United States, 1952, 342 U.S. 910, 72 S.Ct. 304 (certiorari denied).
5
The Ninth Circuit Court of Appeals affirmed a treason conviction, one ground of affirmance being that the methods of expatriation listed in the Nationality Act of 1940, 54 Stat. 1168, 8 U.S.C.A. § 801, were exclusive. Kawakita v. United States, 1951, 190 F.2d 506, 511—514. We granted certiorari, 342 U.S. 932, 72 S.Ct. 375, and affirmed the Court of Appeals without resolving the question. 343 U.S. 717, 72 S.Ct. 950. The Solicitor General urged in support of the conviction that the expatriation procedures of the Nationality Act were exclusive.
In the District of Columbia Circuit, a judgment denying a claim of citizenship was affirmed, one ground of affirmance being that methods of expatriation listed in the Nationality Act of 1940 were not exclusive. Mandoli v. Acheson, 1952, 90 U.S.App.D.C. 112, 193 F.2d 920, 922. In his memorandum in response to the Mandoli petition for certiorari, the Solicitor General, adhering to his position in Kawakita, asserted that this ground of the Court of Appeals decision in this case is 'clearly erroneous.'
| 01
|
343 U.S. 779
72 S.Ct. 1011
96 L.Ed. 1294
ISBRANDTSEN CO., Inc.,v.JOHNSON.
No. 493.
Argued April 23, 1952.
Decided June 9, 1952.
Mr. Mark D. Alspach, Philadelphia, Pa., for petitioner.
Mr. William M. Alper, Philadelphia, Pa., for respondent.
Mr. Justice BURTON delivered the opinion of the Court.
1
The question before us arises in an admiralty proceedings by a seaman against his employer to recover wages earned on a merchant vessel of United States registry. The question is whether the employer may set off against the seaman's wages its expenditures for the medical care and hospitalization of another member of the crew necessitated by injuries inflicted on him by the seaman, without justification, during the voyage on which the wages were earned. For the reasons hereafter stated we hold that it may not do so.
2
In 1948, respondent, Johnson, was employed by petitioner, Isbrandtsen Company, Inc., as a messman on a foreign voyage of a vessel of United States registry, chartered by petitioner. On April 21, while the vessel was on its course in the Pacific, Johnson, without justification, stabbed Brandon, another member of the crew. He injured Brandon so severely that petitioner found it necessary to divert its vessel from its course in order to hospitalize Brandon on the Island of Tonga. Johnson makes no claim for wages earned after April 21. However, when discharged in Philadelphia, May 31, 1948, Johnson claimed $439.27 as earned wages due him above all deductions, without making allowance for any expenditures made by petitioner for the care or hositalization of Brandon. When petitioner refused to pay Johnson anything, he filed a libel and complaint in the United States District Court to recover the balance due on his earned wages, plus interest, transportation to Seattle (his port of signing on) and double wages for each day of unlawful delay in the payment of the sum due.1 Petitioner set up a counterclaim of $2,500, later reduced to $1,691.55, for expenses and losses caused it by Johnson's attack on Brandon.2 It contended also that the nature of this defense demonstrated the existence of sufficient statutory cause for its delay in making payment.
3
The District Court disallowed petitioner's counterclaim and entered judgment for respondent's earned wages and transportation allowance, plus interest and costs. It disallowed respondent's claim for double wages.3 91 F.Supp. 872. Petitioner appealed but the Court of Appeals affirmed. 190 F.2d 991. We granted certiorari because the decision below presents an important question of maritime law not heretofore determined by this Court. 342 U.S. 940, 72 S.Ct. 562.
4
Petitioner cites several early lower court decisions which allowed a set-off against a seaman's suit for wages. These were largely rendered before the Shipping Commissioners Act of 1872 or rendered later without discussion of that or subsequent legislation.4 We ar convinced, however, that the legislation passed by Congress f or the protection of seamen, beginning in 1872, has now covered this field. Petitioner's set-off is not prescribed, recognized or permitted by such legislation. So far as that legislation goes, such a set-off is not available as a defense against a seaman's claim for earned wages. R.S. § 4547, 30 Stat. 756, 46 U.S.C. § 604, 46 U.S.C.A. § 604. On the other hand, the absence of such authorization for the employer to set off such a counterclaim does not preclude it from seeking to collect the claim otherwise.
5
For the purposes of this case, we may assume that petitioner owed Brandon the legal duty to provide him with the medical care and hospitalization which it provided and also owed him the duty to divert its vessel from its course to secure his hospitalization at Tonga. Atuilar v. Standard Oil Co., 318 U.S. 724, 730, 732—736, 63 S.Ct. 930, 933, 934—936, 87 L.Ed. 1107. See Cortes v. Baltimore Insular Line, 287 U.S. 367, 375, 53 S.Ct. 173, 175, 77 L.Ed. 368; Alpha S.S. Corp. v. Cain, 281 U.S. 642, 50 S.Ct. 443, 74 L.Ed. 1086; Jamison v. Encarnacion, 281 U.S. 635, 50 S.Ct. 440, 74 L.Ed. 1082. Also, we may assume, without deciding, that respondent owed petitioner an obligation to reimburse petitioner for the expense which he thus thrust upon it by his unjustified attack upon a fellow seaman.
6
Whenever congressional legislation in aid of seamen has been considered here since 1872, this Court has emphasized that such legislation is largely remedial and calls for liberal interpretation in favor of the seamen. The history and scope of the legislation is reviewed in Aguilar v. Standard Oil Co., 318 U.S. 724, 727—735, and notes, 63 S.Ct. 930, 932—936, 87 L.Ed. 1107. 'Our historic national policy, both legislative and judicial, points the other way (from burdening seamen). Congress has generally sought to sageguard seamen's rights.' Garrett v. Moore-McCormack Co., 317 U.S. 239, 246, 63 S.Ct. 246, 251, 87 L.Ed. 239. '(T)he maritime law by inveterate tradition has made the ordinary seaman a member of a favored class. He is a 'ward of the admiralty,' often ignorant and helpless, and so in need of protection against himself as well as others. * * * Discrimination may thus be rational in respect of remedies for wages.' Warner v. Goltra, 293 U.S. 155, 162, 55 S.Ct. 46, 49, 79 L.Ed. 254; Cortes v. Baltimore Insular Line, 287 U.S. 367, 375, 377, 53 S.Ct. 173, 175—176, 77 L.Ed. 368; Wilder v. Inter-Island Steam Navigation Co., 211 U.S. 239, 246—248, 29 S.Ct. 58, 61—62, 53 L.Ed. 164; Patterson v. Bark Eudora, 190 U.S. 169, 23 S.Ct. 821, 47 L.Ed. 1002; Brady v. Daly, 175 U.S. 148, 155—157, 20 S.Ct. 62, 64—65, 144 L.Ed. 109. 'The ancient characterization of seamen as 'wards of admiralty' is even more accurate now than it was formerly.' Robertson v. Baldwin, 165 U.S. 275, 287, 17 S.Ct. 326, 331, 41 L.Ed. 715;5 Harden v. Gordon, 11 Fed.Cas.No.6,047, 2 Mason 541, 556.
7
Statutes which invade the common law or the general maritime law are to be read with a presumption favoring the retention of long-established and familiar principles, except when a statutory purpose to the contrary is evident. No rule of construction precludes giving a natural meaning to legislation like this that obviously is of a remedial, beneficial and amendatory character. It should be interpreted so as to effect its purpose. Marine legislation, at least since the Shipping Commissioners Act of June 7, 1872, 17 Stat. 262, should be construed to make effective its design to change the general maritime law so as to improve the lot of seamen. 'The rule that statutes in derogation of the common law are to be strictly construed does not require such an adherence to the letter as would defeat an obvious legislative purpose or lessen the scope plainly intended to be given to the measure.' Jamison v. Encarnacion, 281 U.S. 635, 640, 50 S.Ct. 440, 442, 74 L.Ed. 1082; Texas & P.R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 437, 440, 27 S.Ct. 350, 354, 355, 51 L.Ed. 553. The direction of the current of maritime legislation long has been evident on its face.
8
'In this country these notions were reflected early, and have since been expanded, in legislation designed to secure the comfort and health of seamen aboard ship, hospitalization at home and care abroad. * * * The legislation * * * gives no ground for making inferences adverse to the seaman or restrictive of his rights. * * * Rather it furnishes the strongest basis for regarding them broadly, when an issue concerning their scope arises, and particularly when it relates to the general character of relief the legislation was intended to secure.' Aguilar v. Standard Oil Co., 318 U.S. 724, 728—729, 63 S.Ct. 930, 932, 87 L.Ed. 1107.
9
In the specific area of a seaman's right to collect his earned wages promptly upon discharge, § 61 of the Shipping Commissioners Act provided that 'no wages due or accruing to any seaman or apprentice shall be subject to attachment or arrestment from any court, * * *.' 17 Stat. 276, R.S. § 4536, 38 Stat. 1169, 46 U.S.C. § 601, 46 U.S.C.A. § 601. The full force of this became evident when this Court, in 1908, interpreted 'attachment' and 'arrestment' to mean that the Act prohibits the seizure of a seaman's earned wages even by levying execution against them to collect valid judgments. Wilder v. Inter-Island Steam Navigation Co., 211 U.S. 239, 29 S.Ct. 58, 53 L.Ed. 164; see 1 Norris, The Law of Seamen (1951), 347—350.
10
Congressional legislation now touches nearly every phase of a seaman's life. It concerns itself with his personal safety, comfort and health in many ways not necessary to review here. It deals specifically with his shipping articles and the payment to him of his wages. It insures generally a partial payment to him of his wages at each port where his vessel loads or delivers cargo. It insures the payment to him of the balance of those wages upon completion of his voyage or shortly after his discharge.6 It deals explicitly with the final payment of wages.7 It describes 'forfeitures' which lawfully may be deducted from a seaman's wages 'for the benefit of the master or owner by whom the wages are payable.'8 These provisions for the return of wages to the employer are remedial, rather than penal, in their nature. See Crawford, The Construction of Statutes (1940), 106.
11
In keeping with the spirit of such legislation and the need for clear rules governing the computation of the balance due each seaman upon his discharge, it is reasonable to hold that only such deductions and set-offs for derelictions in the performance of his duties shall be allowed against his wages as are recognized in the statutes. Other claims against him may be valid but their collection must be sought through other means.9 The appropriateness of this solution is emphasized in the case of unliquidated counterclaims. Petitioner's unliquidated claim was first estimated at $2,500. It now has been fixed at $1,691.55. The factors making up such a claim are largely within the control and knowledge of the employer alone and it easily could wipe out every cent of a seaman's earned wages.
12
There is little substance to the suggestion that the expenses at issue can be brought within the statutorily recognized 'forfeitures.' Assuming that Johnson's attack amounted to a breach of general discipline it hardly amounted to 'willful disobedience to any lawful command at sea * * *.' R.S. 4596, Foruth.10 Assuming that it caused expense to petitioner, it hardly amounted to 'willfully damaging the vessel * * * or * * * any of the stores or cargo * * *.' R.S. § 4596, Seventh.11
13
From this, we conclude that Congress has preempted the area relating to deductions and set-offs based upon derelictions of duty as against a seaman's claim to his wages. Congress has gone so far in expressly listing such deductions and set-offs that it is a fair inference that those not listed may not be made. It thus remains for the courts to determine only what are the deductions or set-offs for derelictions of duty that are listed by Congress, rather than to determine which of the deductions or set-offs once known to the general maritime law Congress has failed to exclude. Congress, in effect, has excluded all of them except those which it has listed affirmatively.12
14
Accordingly, the judgment is affirmed.
15
Affirmed.
16
Mr. Justice JACKSON dissents.
1
Under R.S. § 4529, as amended, 30 Stat. 756, 38 Stat. 1164, 46 U.S.C. § 596, 46 U.S.C.A. § 596. See note 7, infra.
2
The latter sum is the stipulated amount of petitioner's expenditures for hospitalization, medical care, repatriation and subsistence of Brandon, plus petitioner's expenses for the diversion of its vessel to Tonga, including pilotage, manifests, harbor dues, fuel consumed and food for the crew.
3
See Collie v. Fergusson, 281 U.S. 52, 50 S.Ct. 189, 74 L.Ed. 696.
4
For the Shipping Commissioners Act, see 17 Stat. 262 et seq., Tit. LIII, R.S. §§ 4501—4612, 46 U.S.C., c. 18, §§ 541—713, 46 U.S.C.A. §§ 541—713. The Act of July 20, 1790, 1 Stat. 131, in effect prior to 1872, was a limited forerunner of the expansive remedial legislation that followed. It did not attempt to cover the field to an extent comparable to that done by the later legislation. Accordingly, decisions rendered before 1872, recognizing an employer's right of recoupment against seamen's wages under general maritime law, are not authoritative guides today. The early cases are reviewed in 1 Norris, The Law of Seamen (1951), 378—391.
5
That appraisal was reaffirmed in Cortes v. Baltimore Insular Line, 287 U.S. 367, 377, 53 S.Ct. 173, 176, 77 L.Ed. 368. Current testimony is added by the following statement.
'In my dealings with seamen, a class with whom I come in frequent contact, I find that they are perhaps better educated and better dressed than their fellows of a century ago, but, in general, as improvident and prone to the etremes of trust and suspicion as their forebears who ranged th e seas, but withal a likeable lot.' 1 Norris, The Law of Seamen (195u), Preface.
6
In harbors of the United States this applies even to seamen on foreign vessels. R.S. § 4530, 30 Stat. 756, 38 Stat. 1165, 41 Stat. 1006, 46 U.S.C. § 597, 46 U.S.C.A. § 597. Except as expressly provided by statute, no seaman may be paid in advance or may give up to others his personal right to his wages or his remedies for their recovery. 23 Stat. 55—56, 30 Stat. 76—764, 33 Stat. 308, 38 Stat. 1168—1169, 41 Stat. 1006, 53 Stat . 794, 64 Stat. 1081, 1239, 46 U.S.C. § 599, 46 U.S.C.A. § 599, and 46 U.S.C. (Supp. IV), § 599(b)(g), 46 U.S.C.A. § 599(b, g); R.S. § 4535, 46 U.S.C. § 600, 46 U.S.C.A. § 600. His wages are not subject to attachment or arrestment except for limited provisions for the support of a wife or minor children; allotments to relatives are restricted. R.S. § 4536, 17 Stat. 276, 38 Stat. 1169, 46 U.S.C. § 601, 46 U.S.C.A. § 601. Payments in foreign ports are safeguarded through United States Consuls. R.S. §§ 4580, 4581, 4583, 23 Stat. 54—55, 30 Stat. 759, 38 Stat. 1185, 46 U.S.C. §§ 682, 68o, 685, 46 U.S.C.A. §§ 682, 683, 685.
7
'Sec. 4529. The master or owner of any vessel making coasting voyages shall pay to every seaman his wages within two days after the termination of the agreement under which he was shipped, or at the time such seaman is discharged, whichever first happens; and in case of vessels making foreign voyages, or from a port on the Atlantic to a port on the Pacific, or vice versa, within twenty-four hours after the cargo has been discharged, or within four days after the seaman has been discharged, whichever first happens; and in all cases the seaman shall be entitled to be paid at the time of his discharge on account of wages a sum equal to one-third part of the balance due him. Every master or owner who refuses or neglects to make payment in the manner hereinbefore mentioned without sufficient cause shall pay to the seaman a sum equal to two days' pay for each and every day during which payment is delayed beyond the respective periods, which sum shall be recoverable as wages in any claim made before the court; but this section shall not apply to masters or owners of any vessel the seamen of which are entitled to share in the profits of the cruise or voyage.' R.S. § 4529, as amended, 38 Stat. 1164—1165, 46 U.S.C. § 596, 46 U.S.C.A. § 596.
8
'Sec. 4596. Whenever any seaman who has been lawfully engaged or any apprentice to the sea service commits any of the following offenses, he shall be punished as follows:
'First. For desertion, by forfeiture of all or any part of the clothes or effects he leaves on board and of all or any part of the wages or emoluments which he has then earned.
'Second. For neglecting or refusing without reasonable cause to join his vessel or to proceed to sea in his vessel, or for absence without leave at any time within twenty-four hours of the vessel's sailing from any port, either at the commencement or during the progress of the voyage, or for absence at any time without leave and without sufficient reason from his vessel and from his duty, not amounting to desertion, by forfeiture from his wages of not more than two days' pay or sufficient to defray any expenses which shall have been properly incurred in hiring a substitute.
'Third. For quitting the vessel without leave, after her arrival at the port of her delivery and before she is placed in security, by forfeiture from his wages of not more than one month's pay.
'Fourth. For willful disobedience to any lawful command at sea, by being, at the option of the master, placed in irons until such disobedience shall cease, and upon arrival in port by forfeiture from his wages of not more than four days' pay, or, at the discretion of the court, by imprisonment for not more than one month.
'Fifth. For continued willful disobedience to lawful command or continued willful neglect of duty at sea, by being, at the option of the master, placed in irons, on bread and water, with full rations every fifth day, until such disobedience shall cease, and upon arrival in port by forfeiture, for every twnety-four hours' continuance of such disobedience or neglect, of a sum of not more than twelve days' pay, or by imprisonment for not more than three months, at the discretion of the court.
'Sixth. For assaulting any master, mate, pilot, engineer, or staff officer, by imprisonment for not more than two years.
'Seventh. For willfully damaging the vessel, or embezzling r willfully damaging any of the stores or cargo, by forfeiture out of his wages of a sum equal in amount to the loss thereby sustained, and also, at the discretion of the court, by imprisonment for not more than twelve months.
'Eighth. For any act of smuggling for which he is convicted and whereby loss or damage is occasioned to the master or owner, he shall be liable to pay such master or owner such a sum as is sufficient to reimburse the master or owner for such loss or damage, and the whole or any part of his wages may be retained in satisfaction or on account of such liability, and he shall be liable to imprisonment for a period of not more than twelve months.' R.S. § 4596, as amended, 38 Stat. 1166, 53 Stat. 1147, 46 U.S.C. § 701, 46 U.S.C.A. § 701.
Special provision is made for forfeitures incident to desertion. They are to be applied 'in the first instance, in payment of the expenses occasioned by such desertion, to the master or owner of the vessel from which the desertion has taken place * * *.' The balance is to be paid by the master or owner to a government official to be disposed of in the same manner as in the case of a deceased seaman. 'In all other cases of forfeiture of wages, the forfeiture shall be for the benefit of the master or owner by whom the wages are payable. R.S. § 4604, 46 U.S.C. § 706, 46 U.S.C.A. § 706.
Certain expenses unjustifiably forced upon his employer by a seaman are expressly made chargeable against his earned wages: Unjustified inspections of seaworthiness of the vessel, R.S. § 4562, 46 U.S.C. § 659, 46 U.S.C.A. § 659; unjustified surveys of provisions and water, R.S. § 4566, as amended, 30 Stat. 758, 46 U.S.C. § 663, 46 U.S.C.A. § 663; part of cost of securing conviction of seaman for offenses committed on the voyage, R.S. § 4605, 46 U.S.C. § 707, 46 U.S.C.A. § 707.
9
'The above sections (46 U.S.C. §§ 596, 597, 600, 601, 682, 683 and 685, 46 U.S.C.A. §§ 596, 597, 600, 601, 682, 683, 685) look towards payment to the seaman by his employer, at the termination of the employment, of all of his earned wages, without any deductions except those which are expressly authorized by statute.
'While it is the general rule that a seaman discharged in a foreign port is entitled to receive his wages 'without any deduction whatever' of claims against him whether of his employer or of third parties, there are exceptions recognized by the maritime law and now embodied in statutes.' Shilman v. United States, 2 Cir., 164 F.2d 649, 650—651; and see Chambers v. Moore McCormack Lines, 3 Cir., 182 F.2d 747; Eldridge v. Isbrandtsen Co., D.C., 89 F.Supp. 718. Cf. Oldfield v. The Arthur P. Fairfield, 9 Cir., 176 F.2d 429.
10
See note 8, supra.
11
See note 8, spra. Johnson's atack also was not an assault on 'any master, mate, pilot, engineer, or staff officer' of the vessel. R.S. § 4596, Sixth, note 8, supra. Such an assault may lead to imprisonment of the offender but it entails no 'forfeiture.' If no 'forfeiture' may be set off against a seaman's wages for expenses resulting to his employer from his assault upon a superior officer, there is little basis to imply congressional approval of a set-off against his wages to cover expenses resulting from his assault upon a fellow member of the crew not his superior.
12
For comparable reasons, petitioner's counterclaim may not be set off against the allowance made to respondent for transportation to his port of signing on. That allowance is proportionately as important to him and to his welfare as is the balance due him for earned wages.
| 78
|
343 U.S. 790
72 S.Ct. 1002
96 L.Ed. 1302
LELANDv.STATE OF OREGON.
No. 176.
Argued Jan. 29, 1952.
Decided June 9, 1952.
Rehearing Denied Oct. 13, 1952.
See 73 S.Ct. 4.
[Syllabus from pages 790-791 intentionally omitted]
Mr. Thomas H. Ryan, Portland, Or., for appellant.
Messrs. J. Raymond Carskadon, Charles Eugene Raymond, Portland, Or., for appellee.
Mr. Justice CLARK delivered the opinion of the Court.
1
Appellant was charged with murder in the first degree. He pleaded not guilty and gave notice of his intention to prove insanity. Upon trial in the Circuit Court of Multnomah County, Oregon, he was found guilty by a jury. In accordance with the jury's decision not to recommend life imprisonment, appellant received a sentence of death. The Supreme Court of Oregon affirmed. 190 Or. 598, 227 P.2d 785. The case is here on appeal. 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2).
2
Oregon statutes required appellant to prove his insanity beyond a reasonable doubt and made 'a morbid propensity' no defense.1 The principal questions in this appeal are raised by appellant's contentions that these statutes deprive him of his life and liberty without due process of law as guaranteed by the Fourteenth Amendment.
3
The facts of the crime were revealed by appellant's confessions, as corroborated by other evidence. He killed a fifteen-year-old girl by striking her over the head several times with a steel bar and stabbing her twice with a hunting knife. Upon being arrested five days later for the theft of an automobile, he asked to talk with a homicide officer, voluntarily confessed the murder, and directed the police to the scene of the crime, whether he pointed out the location of the body. On the same day, he signeda full confession and, at his own request, made another in his own handwriting. After his indictment, counsel were appointed to represent him. They have done so with diligence in carrying his case through three courts.
4
One of the Oregon statutes in question provides:
5
'When the commission of the act charged as a crime is proven, and the defense sought to be established is the insanity of the defendant, the same must be proven beyond a reasonable doubt * * *.'2
6
Appellant urges that this statute in effect requires a defendant pleading insanity to establish his innocence by disproving beyond a reasonable doubt elements of the crime necessary to a verdict of guilty, and that the statute is therefore violative of that due process of law secured by the Fourteenth Amendment. To determine the merit of this challenge, the statute must be viewed in its relation to other relevant Oregon law and in its place in the trial of this case.
7
In conformity with the applicable state law,3 the trial judge instructed the jury that, although appellant was charged with murder in the first degree, they might determine that he had committed a lesser crime included in that charged. They were further instructed that his plea of not guilty put in issue every material and necessary element of the lesser degrees of homicide, as well as of the offense charged in the indictment. The jury could have returned any of five verdicts:4 (1) guilty of murder in the first degree, if they found beyond a reasonable doubt that appellant did the killing purposely and with deliberate and premeditated malice; (2) guilty of murder in the second degree, if they found beyond a reasonable doubt that appellant did the killing purposely and maliciously, but without deliberation and premeditation; (3) guilty of manslaughter, if they found beyond a reasonable doubt that appellant did the killing without malice or deliberation, but upon a sudden heat of passion caused by a provocation apparently sufficient to make the passion irresistible; (4) not guilty, if, after a careful consideration of all the evidence, there remained in their minds a reasonable doubt as to the existence of any of the necessary elements of each degree of homicide; and (5) not guilty by reason of insanity, if they found beyond a reasonable doubt that appellant was insane at the time of the offense charged. A finding of insanity would have freed appellant from responsibility for any of the possible offenses. The verdict which the jury determined guilty of first degree murder—required the agreement of all twelve jurors; a verdict of not guilty by reason of insanity would have required the concurrence of only ten members of the panel.5
8
It is apparent that the jury might have found appellant to have been mentally incapable of the premeditation and deliberation required to support a first degree murder verdict or of the intent necessary to find him guilty of either first or second degree murder, and yet not have found him to have been legally insane. Although a plea of insanity was made, the prosecution was required to prove beyond a reasonable doubt every element of the crime charged, including, in the case of first degree murder, premeditation, deliberation, malice and intent.6 The trial court repeatedly emphasized this requirement in its charge to the jury.7 Moreover, the judge directed the jury as follows:
9
'I instruct you that the evidence adduced during this trial to prove defendant's insanity shall be considered and weighed by you, with all other evidence, whether or not you find defendant insane, in regard to the ability of the defendant to premeditate, form a purpose, to deliberate, act wilfully, and act maliciously; and if you find the defendant lacking in such ability, the defendant cannot have committed the crime of murder in the first degree.
10
'I instruct you that should you find the defendant's mental condition to be so affected or diseased to the end that the defendant could formulate no plan, design, or intent to kill in cool blood, the defendant has not committed the crime of murder in the first degree.'8
11
These and other instructions, and the charge as a whole, make it clear that the burden of proof of guilt, and of all the necessary elements of guilt, was placed squarely upon the State. As the jury was told, this burden did not shift, but rested upon the State throughout the trial, just as, according to the instructions, appellant was presumed to be innocent until the jury was convinced beyond a reasonable doubt that he was guilty.9 The jurors were to consider separately the issue of legal sanity per se—an issue set apart from the crime charged, to be introduced by a special plea and decided by a special verdict.10 On this issue appellant had the burden of proof under the statute in question here.
12
By this statute, originally enacted in 1864,11 Oregon adopted the prevailing doctrine of the time—that, since most men are sane, a defendant must prove his insanity to avoid responsibility for his acts. That was the rule announced in 1843 in the leading English decision in M'Naghten's Case:
13
'(T)he jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and * * * to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality f the act he was doing * * *.'12
14
This remains the English view today.13 In most of the nineteenth-century American cases, also, the defendant was required to 'clearly' prove insanity,14 and that was probably the rule followed in most states in 1895,15 when Davis v. United States was decided. In that case this Court, speaking through Mr. Justice Harlan, announced the rule for federal prosecutions to be that an accused is 'entitled to an acquittal of the specific crime charged if, upon all the evidence, there is reasonable doubt whether he was capable in law of committing crime.'16 In reaching that conclusion, the Court observed:
15
'The views we have expressed are supported by many adjudications that are entitled to high respect. If such were not the fact, we might have felt obligated to accept the general doctrine announced in some of the above cases; for it is desirable that there be uniformity of rule in the administration of the criminal law in governments whose constitutions equally recognize the fundamental principles that are deemed essential for the protection of life and liberty.'17
16
The decision obviously establishes no constitutional doctrine, but only the rule to be followed in federal courts. As such, the rule is not in question here.
17
Today, Oregon is the only state that requires the accused, on a plea of insanity, to establish that defense beyond a reasonable doubt. Some twenty states, however, place the burden on the accused to establish his insanity by a preponderance of the evidence or some similar measure of persuasion.18 While there is an evident distinction between these two rules as to the quantum of proof required, we see no practical difference of such magnitude as to be significant in determining the constitutional question we face here. Oregon merely requires a heavier burden of proof. In each instance, in order to establish insanity as a complete defense to the charges preferred, the accused must prove that insanity. The fact that a practice is followed by a large number of states is not conclusive in a decision as to whether that practice accords with due process, but it is plainly worth considering in determining whether the practice 'offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.' Snyder v. Massachusetts, 1934, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674.
18
Nor is this a case in which it is sought to enforce against the states a right which we have held to be secured to defendants in federal courts by the Bill of Rights. In Davis. v. United States, supra, we adopted a rule of procedure for the federal courts which is contrary to that of Oregon. But '(i)ts procedure does not run foul of the Fourteenth Amendment because another method may seem to our thinking to be fairer or wiser or to give a surer promise of protection to the prisoner at the bar.' Snyder v. Massachusetts, supra, at page 105, 54 S.Ct. at page 332, 78 L.Ed. 674. 'The judicial judgment in applying the Due Process Clause must move within the limits of accepted notions of justice and is not to be based upon the idiosyncrasies of a merely personal judgment. * * * An important safeguard against such merely individual judgment is an alert deference to the judgment of the state court under review.' Mr. Justice FRANKFURTER, concurring in Malinski v. New York, 1945, 324 U.S. 401, 417, 65 S.Ct. 781, 789, 89 L.Ed. 1029. We are therefore reluctant to interfere with Oregon's determination of its policy with respect to the burden of proof on the issue of sanity since we cannot say that policy violates generally accepted concepts of basic standards of justice.
19
Nothing said in Tot v. United States, 1943, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519, suggests a different conclusion. That decision struck down a specific presumption created by congressional enactment. This Court found that the fact thus required to be presumed had no rational connection with the fact which, when proven, set the presumption in operation, and that the statute resulted in a presumption of guilt based only upon proof of a fact neither criminal in itself nor an element of the crime charged. We have seen that, here, Oregon required the prosecutor to prove beyond a reasonable doubt every element of the offense charged. Only on the issue of insanity as an absolute bar to the charge was the burden placed upon appellant. In all English-speaking courts, the accused is obliged to introduce proof if he would overcome the presumption of sanity.19
20
It is contended that the instructions may have confused the jury as to the distinction between the State's burden of proving premeditation and the other elements of the charge and appellant's burden of proving insanity. We think the charge to the jury was as clear as instructions to juries ordinarily are or reasonably can be, and, with respect to the State's burden of proof upon all the elements of the crime, the charge was particularly emphatic. Juries have for centuries made the basic decisions between guilt and innocence and between criminal responsibility and legal insanity upon the basis of the facts, as revealed by all the evidence, and the law, as explained by instructions detailing the legal distinctions, the placement and weight of the burden of proof, the effect of presumptions, the meaning of intent, etc. We think that to condemn the operation of this system here would be to condemn the system generally. We are not prepared to do so.
21
Much we have said applies also to appellant's contention that due process is violated by the Oregon statute providing that a 'morbid propensity to commit prohibited acts, existing in the mind of a person, who is not shown to have been incapable of knowing the wrongfulness of such acts, forms no defense to a prosecution therefor.'20 That statute amounts to no more than a legislative adoption of the 'right and wrong' test of legal insanity in preference to the 'irresistible impulse' test.21 Knowledge of right and wrong is the exclusive test of criminal responsibility in a majority of American jurisdictions.22 The science of pschiatry has made tremendous strides since that test was laid down in M'Naghten's Case,23 but the progress of science has not reached a point where its learning would compel us to require the states to eliminate the right and wrong test from their criminal law.24 Moreover, choice of a test of legal sanity involves not only scientific knowledge but questions of basic policy as to the extent to which that knowledge should determine criminal responsibility.25 This whole problem has evoked wide disagreement among those who have studied it. In these circumstances it is clear that adoption of the irresistible impulse test is not 'implicit in the concept of ordered liberty.'26
22
Appellant also contends that the trial court's refusal to require the district attorney to make one of appellant's confessions available to his counsel before trial was contrary to due process. We think there is no substance in this argument. This conclusion is buttressed by the absence of any assignment of error on this ground in appellant's motion for a new trial. Compare Avery v. Alabama, 1940, 308 U.S. 444, 452, 60 S.Ct. 321, 324, 84 L.Ed. 377. While it may be the better practice for the prosecution thus to exhibit a confession, failure to do so in this case in no way denied appellant a fair trial. The record shows that the confession was produced in court five days before appellant rested his case. There was ample time both for counsel and expert witnesses to study the confession. In addition the trial judge offered further time for that purpose but it was refused. There is no indication in the record that appellant was prejudiced by the inability of his counsel to acquire earlier access to the confession.
23
Affirmed.
24
Mr. Justice FRANKFURTER, joined by Mr. Justice BLACK, dissenting.
25
However much conditions may have improved since 1905, when William H. (later Mr. Chief Justice) Taft expressed his disturbing conviction 'that the administration of the criminal law in all the states of the Union (there may be one or two exceptions) is a disgrace to our civilization' (Taft, in The Administration of Criminal Law, 15 Yale L.J. 1, 11), no informed person can be other than unhappy about the serious defects of present-day American criminal justice. It is not unthinkable that failure to bring the guilty to book for a heinous crime which deeply stirs popular sentiment may lead the legislature of a State, in one of those emotional storms which on occasion sweep over our people, to enact that thereafter an indictment for murder, following attempted rape, should be presumptive proof of guilt and cast upon the defendant the burden of proving beyond a reasonable doubt that he did not do the killing. Can there be any doubt that such a statute would go beyond the freedom of the States, under the Due Process Clause of the Fourteenth Amendment, to fashion their own penal codes and their own procedures for enforcing them? Why is that so? Because from the time that the law which we have inherited has emerged from dark and barbaric times, the conception of justice which has dominated our criminal law has refused to put an accused at the hazard of punishment if he fails to remove every reasonable doubt of is innocence in the minds of jurors. It is the duty of the Gov ernment to establish his guilt beyond a reasonable doubt. This notion—basic in our law and rightly one of the boasts of a free society—is a requirement and a safeguard of due process of law in the historic, procedural content of 'due process.' Accordingly there can be no doubt, I repeat, that a State cannot cast upon an accused the duty of establishing beyond a reasonable doubt that his was not the act which caused the death of another.
26
But a muscular contraction resulting in a homicide does not constitute murder. Even though a person be the immediate occasion of another's death, he is not a deodand to be forfeited like a thing in the medieval law. Behind a muscular contraction resulting in another's death there must be culpability to turn homicide into murder.
27
The tests by which such culpability may be determined are varying and conflicting. One does not have to echo the scepticism uttered by Brian, C.J., in the fifteenth century, that 'the devil himself knoweth not the mind of men' to appreciate how vast a darkness still envelops man's understanding of man's mind. Sanity and insanity are concepts of incertitude. They are given varying and conflicting content at the same time and from time to time by specialists in the field. Naturally there has always been conflict between the psychological views absorbed by law and the contradictory views of students of mental health at a particular time. At this stage of scientific knowledge it would be indefensible to impose upon the States, through the due process of law which they must accord before depriving a person of life or liberty, one test rather than another for determining criminal culpability, and thereby to displace a State's own choice of such a test, no matter how backward it may be in the light of the best scientific canons. Inevitably, the legal tests for determining the mental state on which criminal culpability is to be based are in strong conflict in our fortyeight States. But when a State has chosen its theory for testing culpability, it is a deprivation of life without due process to send a man to his doom if he cannot prove beyond a reasonable doubt that the physical events of homicide did not constitute murder because under the State's theory he was incapable of acting culpably.
28
This does not preclude State from utilizing common sense regarding mental irresponsibility for acts resulting in homicide from taking for granted that most men are sane and responsible for their acts. That a man's act is not his, because he is devoid of that mental state which begets culpability, is so exceptional a situation that the law has a right to devise an exceptional procedure regarding it. Accordingly, States may provide various ways for dealing with this exceptional situation by requiring, for instance, that the defense of 'insanity' be specially pleaded, or that he on whose behalf the claim of insanity is made should have the burden of showing enough to overcome the assumption and presumption that normally a man knows what he is about and is therefore responsible for what he does, or that the issue be separately tried, or that a standing disinterested expert agency advise court and jury, or that these and other devices be used in combination. The laws of the forty-eight States present the greatest diversity in relieving the prosecution from proving affirmatively that a man is sane in the way it must prove affirmatively that the defendant is the man who pulled the trigger or struck the blow. Such legislation makes no inroad upon the basic principle that the State must prove guilt, not the defendant innocence, and prove it to the satisfaction of a jury beyond a reasonable doubt.
29
For some unrecorded reason, Oregon is the only one of the forty-eight States that has made inroads upon that principle by requiring the accused to prove beyond a reasonable doubt the absence of one of the essential elements for the commission of murder, namly, culpability for his muscular contra ction. Like every other State, Oregon presupposes that an insane person cannot be made to pay with his life for a homicide, though for the public good he may of course be put beyond doing further harm. Unlike every other State, however, Oregon says that the accused person must satisfy a jury beyond a reasonable doubt that, being incapable of committing murder, he has not committed murder.
30
Such has been the law of Oregon since 1864. That year the Code of Criminal Procedure defined murder in the conventional way, but it also provided: 'When the commission of the act charged as a crime is proven, and the defence sought to be established is the insanity of the defendant, the same must be proven beyond a reasonable doubt * * *.' General Laws of Oregon 1845—1864, p. 441 et seq., §§ 502, 204. The latter section, through various revisions, is the law of Oregon today and was applied in the conviction under review.
31
Whatever tentative and intermediate steps experience makes permissible for aiding the State in establishing the ultimate issues in a prosecution for crime, the State cannot be relieved, on a final show-down, from proving its accusation. To prove the accusation it must prove each of the items which in combination constitute the offense. And it must make such proof beyond a reasonable doubt. This duty of the State of establishing every fact of the equation which adds up to a crime, and of establishing it to the satisfaction of a jury beyond a reasonable doubt is the decisive difference between criminal culpability and civil liability. The only exception is that very limited class of cases variously characterized as mala prohibita or public torts or enforcement of regulatory measures. See United States v. Dotterweich, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48; Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240. Murder is not a malum prohibitum or a public tort or the object of regulatory legislation. To suggest that the legal oddity by which Oregon imposes upon the accused the burden of proving beyond reasonable doubt that he had not the mind capable of committing murder is a mere difference in the measure of proof, is to obliterate the distinction between civil and criminal law.
32
It is suggested that the jury were charged not merely in conformity with this requirement of Oregon law but also in various general terms, as to the duty of the State to prove every element of the crime charged beyond a reasonable doubt, including in the case of first degree murder, 'premeditation, deliberation, malice and intent.' Be it so. The short of the matter is that the Oregon Supreme Court sustained the conviction on the ground that the Oregon statute 'casts upon the defendant the burden of proving the defense of insanity beyond a reasonable doubt.' State v. Leland, 190 Or. 598, 638, 227 P.2d 785, 802. To suggest, as is suggested by this Court but not by the State court, that, although the jury was compelled to act upon this requirement, the statute does not offend the Due Process Clause because the trial judge also indulged in a farrago of generalities to the jury about 'premeditation, deliberation, malice and intent,' is to exact gifts of subtlety that not even judges, let alone juries, possess. See International Harvester Co. v. Kentucky, 234 U.S. 216, 223 224, 34 S.Ct. 853, 856, 58 L.Ed. 1284. If the Due Process Clause has any meaning at all, it does not permit life to be put to such hazards.
33
To deny this mode of dealing with the abuses of insanity pleas and with unedifying spectacles of expert testimony, is not to deprive Oregon of the widest possible choice of remedies for circumventing such abuses. The multiform legislation prevailing in the different States evinces the great variety of the experimental methods open to them for dealing with the problems raised by insanity defenses in prosecutions for murder.
34
To repeat the extreme reluctance with which I find a constitutional barrier o any legislation is not to mouth a threadbare phrase. Especially is deference due to the policy of a State when it deals with local crime, its repression and punishment. There is a gulf, however narrow, between deference to local legislation and complete disregard of the duty of judicial review which has fallen to this Court by virtue of the limits placed by the Fourteenth Amendment upon State action. This duty is not to be escaped, whatever I may think of investing judges with the power which the enforcement of that Amendment involves.
1
Or.Comp.Laws 1940, §§ 26—929, 23—122.
2
Id., § 26—929.
3
Id., §§ 26—947, 26—948.
4
Six possible verdicts were listed in the instructions, guilty of murder in the first degree being divided into two verdicts: with, and without, recommendation of life imprisonment as the penalty. Since the jury in this case did not recommend that punishment, the death sentence was automatically invoked under Oregon law. Id., § 23—411.
5
The agreement of ten jurors would also have been sufficient for a verdict of not guilty, a verdict of guilty of second degree murder, or a verdict of guilty of manslaughter. R. 333—334.
6
Ore.Comp.Lws, 1940, §§ 23—401, 23—414, 26—933; cf. State v. Butchek, 192 7, 121 Or. 141, 253 P. 367, 254 P. 805.
7
R. 321, 323, 324, 330, 331, 332.
8
R. 330. Again:
'I instruct you that to constitute murder in the first degree, it is necessary that the State prove beyond a reasonable doubt, and to your moral certainty, that the defendant's design or plan to take life was formed and matured in cool blood and not hastily upon the occasion.
'I instruct you that in determining whether or not the defendant acted purposely and with premeditated and deliberated malice, it is your duty to take into consideration defendant's mental condition and all factors relating thereto, and that even though you may not find him legally insane, if, in fact, his mentality was impaired, that evidence bears upon these factors, and it is your duty to consider sider this evidence along with all the other evidence in the case.' R. 332.
9
R. 321, 324.
10
Or. Comp.Laws 1940, § 26—846 (requiring notice of purpose to show insanity as defense); id., § 26—955 (providing for verdict of not guilty by reason of insanity and consequent commitment to asylum by judge). After defining legal insanity, the trial court instructed the jury:
'In this case, evidence has been introduced relating to the mental capacity and condition of the defendant . . . at the time (the girl) is alleged to have been killed, and if you are satisfied beyond a reasonable doubt that the defendant killed her in the manner alleged in the indictment, or within the lesser degrees included therein, then you are to consider the mental capacity of the defendant at the time the homicide is alleged to have been committed.' R. 327 (emphasis supplied).
11
Deady's Gen.Laws of Or., 1845—1864, Code of Crim.Proc., § 204.
12
10 Cl. & Fin. 200, 210 (H.L., 1843).
13
Stephen, Digest of the Criminal Law (9th ed., Sturge, 1950), 6; cf. Sodeman v. The King, (1936) W.N. 190 (P.C.); see Woolmington v. Director of Public Prosecutions, (1935) A.C. 462, 475.
14
Weihofen, Insanity as a Defense in Criminal Law (1933), 151—155. 'Clear proof' was sometimes interpreted to mean proof beyond a reasonable doubt, e.g., State v. De Rance, 1882, 34 La.Ann. 186, and sometimes to mean proof by a preponderance of the evidence, e.g., Hurst v. State, 1899, 40 Tex.Crim. 378, 383, 46 S.W. 635, 50 S.E. 719.
15
See Wharton, Criminal Evidence (9th ed. 1884), §§ 336 340.
16
1895, 160 U.S. 469, 484, 16 S.Ct. 353, 357, 40 L.Ed. 499; see Hotema v. United States, 1902, 186 U.S. 413, 22 S.Ct. 895, 46 L.Ed. 1225; Matheson v. United States, 1913, 227 U.S. 540, 33 S.Ct. 355, 57 L.Ed. 631.
17
160 U.S. at page 488, 16 S.Ct. at page 358, 40 L.Ed. 499.
18
Weihofen lists twelve states as requiring proof by a preponderance of the evidence, four as requiring proof 'to the satisfaction of the jury,' two which combine these formulae, one where by statute the defense must be 'clearly proved to the reasonable satisfaction of the jury,' one where it has been held that the jury must 'believe' the defendant insane, and one where the quantum of proof has not been stated by the court of last resort, but which appears to follow the preponderance rule. Weihofen, Insanity as a Defense in Criminal Law (1933), 148—151, 172—200. Twenty-two states, including Oregon, are mentioned as holding that the accuse has the burden of proving insanity, at least by a preponderance of the evidence, in 9 Wigmore, Evidence (3d ed. 1940 and Supp. 1951), § 2501.
19
Weihofen, Insanity as a Defense in Criminal Law (1933), 161; 9 Wigmore, Evidence (3d ed. 1940), § 2501.
20
Or.Comp.Laws 1940, § 23—122.
21
State v. Garver, 1950, 190 Or. 291, 225 P.2d 771; State v. Wallace, 1942, 170 Or. 60, 131 P.2d 222; State v. Hassing, 1911, 60 Or. 81, 118 P. 195.
22
Weihofen, Insanity as a Defense in Criminal Law (1933), 15, 64—68, 109—147.
23
10 Cl. & Fin. 200 (H.L., 1843).
24
Compare Fisher v. United States, 1946, 328 U.S. 463, 475 476, 66 S.Ct. 1318, 1324, 90 L.Ed. 1382.
25
See Holloway v. United States, 1945, 80 U.S.App.D.C. 3, 148 F.2d 665; Glueck, Mental Disorder and the Criminal Law (1925); Hall, Mental Disease and Criminal Responsibility, 45 Col.L.Rev. 677 (1945); Keedy, Insanity and Criminal Responsibility, 30 Harv.L.Rev. 535, 724 (1917).
26
Palko v. Connecticut, 1937, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288.
| 34
|
344 U.S. 1
73 S.Ct. 1
97 L.Ed. 3
BROWN et al.v.BOARD OF EDUCATION OF TOPEKA, SHAWNEE COUNTY, KAN., et al. BRIGGS et al. v. ELLIOTT et al. DAVIS et al. v. COUNTY SCHOOL BOARD OF PRINCE EDWARD COUNTY, VA., et al.
Nos. 8, 101, 191.
Decided Oct. 8, 1952.
Page 2 PER CURIAM.
1
In two appeals now pending, No. 8, Brown et al. v. Board of Education of Topeka et al., and No. 101, Briggs et al. v. Elliott et al., the appellants challenge, respectively, the constitutionality of a statute of Kansas, and a statute and the constitution of South Carolina, which provide for segregation in the schools of these states. D.C., 98 F.Supp. 797, D.C., 103 F.Supp. 920. Appellants allege that segregation is, per se, a violation of the Fourteenth Amendment. Argument in these cases has heretofore been set for the week of October 13, 1952.
2
In No. 191, Davis et al. v. County School Board of Prince Edward County et al., the appellants have filed a Statement of Jurisdiction raising the same issue in respect to a statute and the constitution of Virginia. D.C., 103 F.Supp. 337. Appellees in the Davis case have called attention to the similarity between it and the Briggs and Brown cases; by motion they have asked the Court to take necessary action to have all three cases argued together.
3
This Court takes judicial notice of a fourth case, which is pending in the United States Court of Appeals for the District of Columbia Circuit, Bolling et al. v. Sharpe et al., No. 11,018 on that court's docket. In that case, the appellants challenge the appellees' refusal to admit certain Negro appellants to a segregated white school, in the District of Columbia; they allege that appellees have taken such action pursuant to certain Acts of Congress; they allege that such action is a violation of the Fifth Amendment of the Constitution.
4
The Court is of the opinion that the nature of the issue posed in those appeals now before the Court involving the Fourteenth Amendment, and also the effect of any decision which it may render in those cases, are such that it would be well to consider, simultaneously, the constitutional issues posed in the case of Bolling v. Sharpe.
5
To the end that arguments may be heard together in all four of these cases, the Court will continue the Brown and Briggs cases on its docket. Probable jurisdiction is noted in Davis v. County School Board of Prince Edward County. Arguments will be heard in these three cases at the first argument session in December.
6
The Court will entertain a petition for certiorari in the case of Bolling v. Sharpe, 28 U.S.C. §§ 1254(1), 2101(e), 28 U.S.C.A. §§ 1254(1), 2101(e), which if presented and granted will afford opportunity for argument of the case immediately following the arguments in the three appeals now pending. It is so ordered.
7
Cases continued.
8
Mr. Justice DOUGLAS dissents from postponing argument and decision in the three cases presently here for Bolling v. Sharpe, in the United States Court of Appeals for the District of Columbia Circuit.
| 89
|
344 U.S. 4
73 S.Ct. 2
97 L.Ed. 4
CIVIL AERONAUTICS BOARD et al.v.AMERICAN AIR TRANSPORT, Inc., et al.
No. 126.
Decided Oct. 20, 1952.
PER CURIAM.
1
The certificate is dismissed. National Labor Relations Board v. White Swan Co., 1941, 313 U.S. 23, 61 S.Ct. 751, 85 L.Ed. 1165; Lowden v. Northwestern National Bank & Trust Co., 1936, 298 U.S. 160, 56 S.Ct. 696, 80 L.Ed. 1114; White v. Johnson, 1931, 282 U.S. 367, 51 S.Ct. 115, 75 L.Ed. 388; United States v. Union Pacific R. Co., 1897, 168 U.S. 505, 18 S.Ct. 167, 42 L.Ed. 559.
2
The Civil Aeronautics Board has applied to this Court for an order requiring the Court of Appeals to send up the entire record. To grant such an application would bring 'the entire matter in controversy' before the Court for decision. 28 U.S.C. § 1254(3) 28 U.S.C.A. § 1254(3).
3
Since the certificate must be dismissed, the Court should not exercise its discretionary power to bring up 'the entire matter in controversy' for review. See Cleveland-Cliffs Iron Co. v. Arctic Iron Co., 1918, 248 U.S. 178, 39 S.Ct. 91, 63 L.Ed. 198. Perhaps the Court of Appeals may now wish to hear this case en banc to resolve the deadlock indicated in the certificate and give full review to the entire case. This Court does not normally review orders of administrative agencies in the first instance; and the Court does not desire to take any action at this time which might foreclose the possibility of such review in the Court of Appeals.
4
For these reasons the Board's application is denied.
5
Mr. Justice DOUGLAS dissents.
| 89
|
344 U.S. 13
73 S.Ct. 75
97 L.Ed. 12
SANFORDv.KEPNER.
No. 46.
Argued Oct. 24, 1952.
Decided Nov. 10, 1952.
Mr. J. Preston Swecker, Washington, D.C., for petitioner.
Mr. Hugh M. Morris, Wilmington, Del., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
Claiming he was the original and sole inventor of a mechanical device, the respondent Kepner asked the United States Patent Office for a patent. Later the petitioner Sanford filed a similar application making the same claim. As authorized by R.S. § 4904, 35 U.S.C. § 52, 35 U.S.C.A. § 52, the Commissioner of Patents directed a board of interference examiners to hold hearings and determine the dispute over priority of invention—which of the two first used the device. The Board decided for respondent Kepner. Sanford's application for patent was accordingly refused. As authorized by R.S. § 4915, 35 U.S.C. § 63, 35 U.S.C.A. § 63, Sanford brought this bill in equity praying that he be adjudged inventor of the device and entitled to a patent. Sanford also prayed that Kepner's claims be adjudged unpatentable, charging that many previous patents had been granted on Kepner's device, some of which had expired. Agreeing with the Board of Interference Examiners, the District Court found against Sanford on the issue of prior use. Since this was enough to justify refusal to issue Sanford a patent, the District Court declined to go further and consider Kepner's claim to a patent. Accordingly Sanford's bill was dismissed. 99 F.Supp. 221. Agreeing with the District Court, the Court of Appeals affirmed. 3 Cir., 195 F.2d 387. The circuits have different views concerning the duty of district courts to consider and adjudicate questions of invention and patentability when parties urge them in R.S. § 4915 proceedings.1 To settle these differences we granted certiorari. 343 U.S. 976, 72 S.Ct. 1075.
2
So far as relevant to the precise question here, R.S. § 4915, as now contained in 35 U.S.C. § 63, 35 U.S.C.A. § 63, reads:
3
'* * * whenever any applicant is dissatisfied with the decision of the board of interference examiners, the applicant * * * may have remedy by bill in equity * * * and the court * * * may adjudge that such applicant is entitled, according to law, to receive a patent for his invention * * *. And such adjudication, if it be in favor of the right of the applicant, shall authorize the commissioner to issue such patent on the applicant filing in the Patent Office a copy of the adjudication and otherwise complying with the requirements of law.'
4
The obvious purpose of the quoted part of R.S. § 4915 is to give a judicial remedy to an applicant who has been finally denied a patent because of a Patent Office decision against him and in favor of his adversary on the question of priority. When the trial court decides this factual issue of priority against him and thus affirms the refusal of the patent by the Patent Office, he has obtained the full remedy the statute gives him. Only if he wins on priority may he proceed. In that event, the statute says, the court may proceed to 'adjudge that such applicant is entitled, according to law, to receive a patent for his invention * * *.' So adjudging, it may authorize issuance of the patent. But judicial authorization of issuance implies judicial sanction of patentability and for this reason this Court has said, 'It necessarily follows that no adjudication can be made in favor of the applicant, unless the alleged invention for which a patent is sought is a patentable invention.' Hill v. Wooster, 132 U.S. 693, 698, 10 S.Ct. 228, 230, 33 L.Ed. 502. The principle of the Hill case is that the court must decide whether claims show patentable inventions before authorizing the Commissioner to issue a patent. No part of its holding or wording nor of that in Hoover Co. v. Coe, 325 U.S. 79, 65 S.Ct. 955, 89 L.Ed. 1488, requires us to say R.S. § 4915 compels a district court to adjudicate patentability at the instance of one whose claim is found to be groundless. Sanford's claim was found to be groundless.
5
It is unlikely that this equity proceeding would develop a full investigation of validity. There would be no attack on the patent comparable to that of an infringement action. Here the very person who claimed an invention now asks to prove that Kepner's similar device was no invention at all because of patents issued long before either party made claim for his discovery. There is no real issue of invention between the parties here and we see no reason to read into the statute a district court's compulsory duty to adjudicate validity.
6
Affirmed.
1
In accord with the Court of Appeals, Heston v. Kuhlke, 6 Cir., 179 F.2d 222; Smith v. Carter Carburetor Corp., 3 Cir., 130 F.2d 555; Cleveland Trust Co. v. Berry, 6 Cir., 99 F.2d 517. Contra: Minneapolis Honeywell Regulator Co. v. Milwaukee Gas Specialty Co., 7 Cir., 174 F.2d 203; Knutson v. Gallsworthy, 82 U.S.App.D.C. 304, 164 F.2d 497.
| 78
|
344 U.S. 43
73 S.Ct. 77
97 L.Ed. 61
UNITED STATESv.BEACON BRASS CO., Inc. et al.
No. 30.
Argued Oct. 23, 1952.
Decided Nov. 10, 1952.
Mr. Marvin E. Frankel, Washington, D.C., for appellant.
Mr. Richard Maguire, Boston, Mass., for appellees.
Mr. Justice MINTON delivered the opinion of the Court.
1
On March 16, 1951, a one-count indictment was returned in the United States District Court for the District of Massachusetts against the appellees, Beacon Brass Company, a corporation, and Maurice Feinberg, its president and treasurer. The indictment charged that in violation of § 145(b) of the Internal Revenue Code, 40 Stat. 1085, as amended, 26 U.S.C. § 145(b), 26 U.S.C.A. § 145(b), the appellees had willfully attempted to evade taxes by making false statements to Treasury representatives on October 24, 1945, 'for the purpose of supporting, ratifying, confirming and concealing the fraudulent and incorrect statements and representations made in the corporate tax return of said Beacon Brass Co., Inc., for the fiscal period ending October 31, 1944, filed on or about January 5, 1945 * * *.' Section 145(b) provides in pertinent part:
2
'(A)ny person who willfully attempts in any manner to evade or defeat any tax imposed by this chapter or the payment thereof, shall, in addition to other penalties provided by law, be guilty of a felony * * *.' (Emphasis supplied.)
3
The six-year limitation period, 43 Stat. 341, 342, as amended, 26 U.S.C. § 3748(a)(2), 26 U.S.C.A. § 3748(a)(2), applicable to offenses under this statute, had expired on a charge for filing a false tax return in January 1945, but it had not expired on a charge of making false statements to Treasury employees in October 1945. The District Court viewed the indictment as charging the separate crimes of filing a false return and making subsequent false statements to Treasury representatives, and dismissed the indictment as duplicitous.
4
On September 14, 1951, a second indictment was returned against the appellees which repeated the charge that in violation of § 145(b) they 'did wilfully and knowingly attempt to defeat and evade a large part of the taxes due and owing by the said corporation * * * by making certain false and fraudulent statements and representations, at a hearing and conference before representatives and employees of the United States Treasury Department, on or about October 24, 1945 * * *.' Reference to the allegedly false return filed in January 1945 was omitted, and instead it was charged that the false statements were made 'for the purpose of concealing additional unreported net income * * *.'
5
Section 35(A) of the Criminal Code, 18 U.S.C. § 80 (1946 ed.) (now 18 U.S.C. (Supp. V) § 1001, 18 U.S.C.A. § 1001) makes it unlawful to 'knowingly and willfully * * * make * * * any false or fraudulent statements or representations * * * in any matter within the jurisdiction of any department or agency of the United States * * *.' Obviously, at the times of the indictments here, the three-year limitation period, 18 U.S.C. (Supp. V) § 3282, 18 U.S.C.A. § 3282, for violations of this statute had expired as to statements made in October 1945. The District Court concluded that since § 35(A) deals specifically with false statements, Congress must be presumed to have intended that the making of false statements should be punishable only under § 35(A). Therefore, the District Court dismissed the indictment on the ground that it failed to charge an offense under 26 U.S.C. § 145(b), 26 U.S.C.A. § 145(b). 106 F.Supp. 510. We noted probable jurisdiction of the United States' appeal taken under authority of 18 U.S.C. (Supp. V) § 3731, 18 U.S.C.A. § 3731.
6
We have before us two statutes, each of which proscribes conduct not covered by the other, but which overlap in a narrow area illustrated by the instant case. At least where different proof is required for each offense, a single act or transaction may violate more than one criminal statute. United States v. Noveck, 273 U.S. 202, 206, 47 S.Ct. 341, 342, 71 L.Ed. 610; Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489. Unlike § 35(A), § 145(b) requires proof that the false statements were made in a willful effort to evade taxes. The purpose to evade taxes is crucial under this section. The language of § 145(b) which outlaws willful attempts to evade taxes 'in any manner' is clearly broad enough to include false statements made to Treasury representatives for the purpose of concealing unreported income. Cf. Spies v. United States, 317 U.S. 492, 499, 63 S.Ct. 364, 368, 87 L.Ed. 418. The question raised by the decision below is whether by enacting a statute specifically outlawing all false statements in matters under the jurisdiction of agencies of the United States, Congress intended thereby to exclude the making of false statements from the scope of § 145(b).
7
We do not believe that Congress intended to require the tax-enforcement authorities to deal differently with false statements than with other methods of tax evasion. By providing that the sanctions of § 145(b) should be 'in addition to other penalties provided by law,' Congress recognized that some methods of attempting to evade taxes would violate other statutes as well. See Taylor v. United States, 9 Cir., 179 F.2d 640, 644. Moreover, since no distinction is made in § 35(A) between written and oral statements, the reasoning of the court below would be equally applicable to false tax returns which are, of course, false written statements. But the Courts of Appeals have uniformly applied § 145(b) to attempts to evade taxes by filing false returns. E.g., Gaunt v. United States, 1 Cir., 184 F.2d 284, 288; Taylor v. United States, supra, 179 F.2d at pages 643—644. Further support for our conclusion can be found in United States v. Noveck, supra, where this Court rejected the contention that the enactment of § 145(b) impliedly repealed the general perjury statute insofar as that statute applied to false tax returns made under oath. Cf. United States v. Gilliland, 312 U.S. 86, 93, 95 96, 61 S.Ct. 518, 522, 523, 85 L.Ed. 598. Finally, the enactment of other statutes expressly outlawing false statements in particular contexts, e.g., 18 U.S.C.(Supp. V) §§ 1010, 1014, 18 U.S.C.A. §§ 1010, 1014, negates the assumption—which was the foundation of the decision of the court below—that Congress intended the making of false statements to be punishable only under § 35(A).
8
The appellees contend that the acts charged constitute only one crime of tax evasion which was complete when the allegedly false tax return was filed. On the basis of this contention, appellees seek to sustain the decision below on the grounds that the six-year statute of limitations had run, and that the dismissal of the first indictment is res judicata and a bar to the second indictment for the same offense. We do not consider these questions because our jurisdiction on this appeal is limited to review of the District Court's construction of the statute in the light of the facts alleged in the indictment. 18 U.S.C.(Supp. V) § 3731, 18 U.S.C.A. § 3731; United States v. Borden Co., 308 U.S. 188, 206—207, 60 S.Ct. 182, 191—192, 84 L.Ed. 181.
9
The judgment of the District Court is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.
10
Reversed.
11
Mr. Justice BLACK is of the opinion that the District Court reached the right result and would affirm its judgment.
| 01
|
344 U.S. 6
73 S.Ct. 71
97 L.Ed. 6
ARROWSMITH et al.v.COMMISSIONER OF INTERNAL REVENUE.
No. 51.
Argued Oct. 24, 1952.
Decided Nov. 10, 1952.
Rehearing Denied Dec. 8, 1952.
See 344 U.S. 900, 73 S.Ct. 273.
Mr. George R. Sherriff, New York City, for petitioners.
Helen Goodner, Washington, D.C., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
This is an income tax controversy growing out of the following facts as shown by findings of the Tax Court. In 1937 two taxpayers, petitioners here, decided to liquidate and divide the proceeds of a corporation in which they had equal stock ownership.* Partial distributions made in 1937, 1938, and 1939 were followed by a final one in 1940. Petitioners reported the profits obtained from this transaction, classifying them as capital gains. They thereby paid less income tax than would have been required had the income been attributed to ordinary business transactions for profit. About the propriety of these 1937—1940 returns, there is no dispute. But in 1944 a judgment was rendered against the old corporation and against Frederick R. Bauer, individually. The two taxpayers were required to and did pay the judgment for the corporation, of whose assets they were transferees. See Phillips-Jones Corp. v. Parmley, 302 U.S. 233, 235—236, 58 S.Ct. 197, 198, 82 L.Ed. 221. Cf. I.R.C. § 311(a), 26 U.S.C.A. § 311(a). Classifying the loss as an ordinary business one, each took a tax deduction for 100% of the amount paid. Treatment of the loss as a capital one would have allowed deduction of a much smaller amount. See I.R.C. § 117(b), (d)(2) and (e), 26 U.S.C.A. § 117(b), (d)(2), (e). The Commissioner viewed the 1944 payment as part of the original liquidation transaction requiring classification as a capital loss, just as the taxpayers had treated the original dividends as capital gains. Disagreeing with the Commissioner the Tax Court classified the 1944 payment as an ordinary business loss. 15 T.C. 876. Disagreeing with the Tax Court the Court of Appeals reversed, treating the loss as 'capital.' 2 Cir., 193 F.2d 734. This latter holding conflicts with the Third Circuit's holding in Commissioner of Internal Revenue V. Switlik, 184 F.2d 299. Because of this conflict, we granted certiorari. 343 U.S. 976, 72 S.Ct. 1075.
2
I.R.C. § 23(g), 26 U.S.C.A. § 23(g), treats losses from sales or exchanges of capital assets as 'capital losses' and I.R.C. § 115(c), 26 U.S.C.A. § 115(c), requires that liquidation distributions be treated as exchanges. The losses here fall squarely within the definition of 'capital losses' contained in these sections. Taxpayers were required to pay the judgment because of liability imposed on them as transferees of liquidation distribution assets. And it is plain that their liability as transferees was not based on any ordinary business transaction of theirs apart from the liquidation proceedings. It is not even denied that had this judgment been paid after liquidation, but during the year 1940, the losses would have been properly treated as capital ones. For payment during 1940 would simply have reduced the amount of capital gains taxpayers received during that year.
3
It is contended, however, that this payment which would have been a capital transaction in 1940 was transformed into an ordinary business transaction in 1944 because of the well-established principle that each taxable year is a separate unit for tax accounting purposes. United States v. Lewis, 340 U.S. 590, 71 S.Ct. 522, 95 L.Ed. 560; North American Oil Consolidated v. Burnet, 286 U.S. 417, 52 S.Ct. 613, 76 L.Ed. 1197. But this principle is not breached by considering all the 1937—1944 liquidation transaction events in order properly to classify the nature of the 1944 loss for tax purposes. Such an examination is not an attempt to reopen and readjust the 1937 to 1940 tax returns, an action that would be inconsistent with the annual tax accounting principle.
4
The petitioner Bauer's executor presents an argument for reversal which applies to Bauer alone. He was liable not only by reason of being a transferee of the corporate assets. He was also held liable jointly with the original corporation, on findings that he had secretly profited because of a breach of his fiduciary relationship to the judgment creditor. Trounstine v. Bauer, Pogue & Co., D.C., 44 F.Supp. 767, 773; Id., 2 Cir., 144 F.2d 379, 382. The judgment was against both Bauer and the corporation. For this reason it is contended that the nature of Bauer's tax deduction should be considered on the basis of his liability as an individual who sustained a loss in an ordinary business transaction for profit. We agree with the Court of Appeals that this contention should not be sustained. While there was a liability against him in both capacities, the individual judgment against him was for the whole amount. His payment of only half the judgment indicates that both he and the other transferee were paying in their capacities as such. We see no reason for giving Bauer a preferred tax position.
5
Affirmed.
6
Mr. Justice DOUGLAS, dissenting.
7
I agree with Mr. Justice JACKSON that these losses should be treated as ordinary, not capital, losses. There were no capital transactions in the year in which the losses were suffered. Those transactions occurred and were accounted for in earlier years in accord with the established principle that each year is a separate unit for tax accounting purposes. See United States v. Lewis, 340 U.S. 590, 71 S.Ct. 522, 95 L.Ed. 560. I have not felt, as my dissent in the Lewis case indicates, that the law made that an inexorable principle. But if it is the law, we should require observance of it—not merely by taxpayers but by the government as well. We should force each year to stand on its own footing, whoever may gain or lose from it in a particular case. We impeach that principle when we treat this year's losses as if they diminished last year's gains.
8
Mr. Justice JACKSON, whom Mr. Justice FRANKFURTER joins, dissenting.
9
This problem arises only because the judgment was rendered in a taxable year subsequent to the liquidation.
10
Had the liability of the transferor-corporation been reduced to judgment during the taxable year in which liquidation occurred, or prior thereto, this problem, under the tax laws, would not arise. The amount of the judgment rendered against the corporation would have decreased the amount it had available for distribution which would have reduced the liquidating dividends proportionately and diminished the capital gains taxes assessed against the stockholders. Probably it would also have decreased the corporation's own taxable income.
11
Congress might have allowed, under such circumstances, tax returns of the prior year to be reopened or readjusted so as to give the same tax results as would have obtained had the liability become known prior to liquidation. Such a solution is foreclosed to us and the alternatives left are to regard the judgment liability fastened by operation of law on the transferee as an ordinary loss for the year of adjudication or to regard it as a capital loss for such year.
12
This Court simplifies the choice to one of reading the English language, and declares that the losses here come 'squarely within' the definition of capital losses contained within two sections of the Internal Revenue Code. What seems so clear to this Court was not seen at all by the Tax Court, in this case or in earlier consideration of the same issue; nor was it grasped by the Court of Appeals for the Third Circuit. Commissioner of Internal Revenue v. Switlik, 1950, 184 F.2d 299.
13
I find little aid in the choice of alternatives from arguments based on equities. One enables the taxpayer to deduct the amount of the judgment against his ordinary income which might be taxed as high as 87%, while if the liability had been assessed against the corporation prior to liquidation it would have reduced his capital gain which was taxable at only 25% (now 26%). The consequence may readily be characterized as a windfall (regarding a windfall as anything that is left to a taxpayer after the collector has finished with him).
14
On the other hand, adoption of the contrary alternative may penalize the taxpayer because of two factors: (1) since capital losses are deductible only against capital gains, plus $1,000, a taxpayer having no net capital gains in the ensuing five years would have no opportunity to deduct anything beyond $5,000; and (2) had the liability been discharged by the corporation, a portion of it would probably in effect have been paid by the Government, since the corporation could have taken it as a deduction, while here the total liability comes out of the pockets of the stockholders.
15
Solicitude for the revenues is a plausible but treacherous basis upon which to decide a particular tax case. A victory may have implications which in future cases will cost the Treasury more than a defeat. This might be such a case, for anything I know. Suppose that subsequent to liquidation it is found that a corporation has undisclosed claims instead of liabilities and that under applicable state law they may be prosecuted for the benefit of the stockholders. The logic of the Court's decision here, if adhered to, would result in a lesser return to the Government than if the recoveries were considered ordinary income. Would it be so clear that this is a capital loss if the shoe were on the other foot?
16
Where the statute is so indecisive and the importance of a particular holding lies in its rational and harmonious relation to the general scheme of the tax law, I think great deference is due the twice-expressed judgment of the Tax Court. In spite of the gelding of Dobson v. Commissioner, 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248, by the recent revision of the Judicial Code, Act of June 25, 1948, § 36, 62 Stat. 991—992, 26 U.S.C.A. § 1141(a), I still think the Tax Court is a more competent and steady influence toward a systematic body of tax law than our sporadic omnipotence in a field beset with invisible boomerangs. I should reverse, in reliance upon the Tax Court's judgment more, perhaps, than my own.
*
At dissolution the corporate stock was owned by Frederick P. Bauer and the executor of Davenport Pogue's estate. The parties here now are Pogue's widow, Bauer's widow, and the executor of Bauer's estate.
| 1112
|
344 U.S. 17
73 S.Ct. 85
97 L.Ed. 15
FEDERAL POWER COMMISSIONv.IDAHO POWER CO.
No. 12.
Argued Oct. 20, 21, 1952.
Decided Nov. 10, 1952.
Rehearing Denied Dec. 22, 1952.
See 344 U.S. 910, 73 S.Ct. 326.
[Syllabus from pages 17-18 intentionally omitted]
Mr. Philip Elman, Washington, D.C., for petitioner.
Messrs. Harry A. Poth, Jr., Washington, D.C., and A. C. Inman, Boise, Idaho, for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Respondent applied to petitioner under § 4(e) of the Federal Power Act, 41 Stat. 1065, 49 Stat. 840, 16 U.S.C. § 797(e), 16 U.S.C.A. § 797(e) for a license to construct, operate, and maintain a hydroelectric project (known as the Bliss development) on the Snake River in southern Idaho. This project included a dam and power plant occupying some 500 acres of lands of the United States and two transmission lines. These lines for most of their length crossed lands of the United States and joined the company's interconnected primary transmission system.
2
The United States has power projects in this area; and the Bureau of Reclamation and the Bonneville Power Administration were contemplating the construction of a transmission line which would connect the same areas as respondent's proposed lines. Therefore the Federal Power Commission on the suggestion of the Secretary of the Interior authorized the project on conditions specified in paragraph (F) of the order. These conditions, in summary, were that the licensee permit the interconnection of transmission facilities of the United States with the two transmission lines, and the transfer over those lines of energy generated in power plants owned by the United States 'in such amounts as will not unreasonably interfere' with the licensee's use of the lines, the United States to pay the licensee for government power so transmitted.
3
Respondent petitioned for review of the Commission's order. The Court of Appeals held that the Commission had no authority to attach the condition. It entered a judgment that the Commission's order 'be modified' and that the cause be remanded to the Commission 'for the entry of an order in accordance with the opinion of this Court.' That was on May 10, 1951. 89 U.S.App.D.C. 1, 189 F.2d 665. The Commission moved for a clarification of the judgment. On September 21, 1951, the Court of Appeals entered a new judgment, stating that the order of the Commission 'be, and it is hereby, modified by the striking therefrom paragraph (F) thereof and that the order of the Federal Power Commission herein as thus modified be, and it is hereby affirmed.' The petition for certiorari was filed within 90 days of the amended order but more than 90 days after the first order. The question which therefore lies at the threshold of the case is whether the petition is timely. See 28 U.S.C. § 2101(c), 28 U.S.C.A. § 2101(c).
4
First. If the court did no more by the second judgment than to restate what it had decided by the first one, Department of Banking v. Pink, 317 U.S. 264, 63 S.Ct. 233, 87 L.Ed. 254, would apply and the 90 days would start to run from the first judgment. But the court by the second judgment undertook to modify the license. By the first judgment it did no more than keep the Commission within the bounds set by its opinion. On remand the Commission might have reissued the order without the contested conditions or it might have withheld its consent to any license. It is the Commission's judgment on which Congress has placed its reliance for control of licenses. See §§ 6, 10(a), 10(g). When the court decided that the license should issue without the conditions, it usurped an administrative function. There doubtless may be situations where the provision excised from the administrative order is separable from the remaining parts or so minor as to make remand inappropriate. But the guiding principle, violated here, is that the function of the reviewing court ends when an error of law is laid bare. At that point the matter once more goes to the Commission for reconsideration. See Federal Communications Commission v. Pottsville Broadcasting Co., 309 U.S. 134, 60 S.Ct. 437, 84 L.Ed. 656; Federal Trade Commission v. Morton Salt Co., 334 U.S. 37, 68 S.Ct. 822, 92 L.Ed. 1196.
5
The Court, it is true, has power 'to affirm, modify, or set aside' the order of the Commission 'in whole or in part.' § 313(b). But that authority is not power to exercise an essentially administrative function. See Ford Motor Co. v. National Labor Relations Board, 305 U.S. 364, 373—374, 59 S.Ct. 301, 306, 307, 83 L.Ed. 221; Jacob Siegel Co. v. Federal Trade Commission, 327 U.S. 608, 66 S.Ct. 758, 90 L.Ed. 888. The nature of the determination is emphasized by § 10(a) which specifies that the project adopted 'shall be such as in the judgment of the Commission will be best adapted to a comprehensive plan * * * for the improvement and utilization of water-power development, and for other beneficial public uses'. Whether that objective may be achieved if the contested conditions are stricken from the order is an administrative, not a judicial, decision.1
6
Second. The power of Congress over public lands, conferred by Art. IV, § 3 of the Constitution, is 'without limitations,' as we stated in United States v. City and County of San Francisco, 310 U.S. 16, 29, 60 S.Ct. 749, 756, 84 L.Ed. 1050. The Court of Appeals, while recognizing that principle, held that Congress had not granted the Commission authority to condition the use of public lands by requiring a public utility to carry government power. It relied on § 201(f) of the Act which says that 'No provision in this Part shall apply to * * * the United States * * *.' The Part referred to is Part II of the Act which set up a system of control over the transmission of electric energy in interstate commerce. It granted the Commission authority, among other things, to direct a public utility to establish physical connection of its transmission facilities with the facilities of other persons engaged in the transmission or sale of electric energy. § 202(b). Since that power was not extended to the United States, the court concluded that a license under Part I of the Act could not be conditioned on an interconnection with federal power.
7
Part I and Part II provide different regulatory schemes. Part II is an exercise of the commerce power over public utilities engaged in the interstate transmission and sale of electric energy. See S. Rep. No. 621, 74th Cong., 1st Sess., p. 17. Part II does not undertake to regulate public lands or the use of navigable streams. That function is covered by Part I, which dates back to the Federal Water Power Act of 1920, 41 Stat. 1063. Section 4(e) of Part I gives the Commission power to issue licenses to private or public bodies for the purpose of 'constructing, operating, and maintaining dams, water conduits, reservoirs, power houses, transmission lines, or other project works necessary or convenient for the development and improvement of navigation and for the development, transmission, and utilization of power across, along, from, or in any of the streams or other bodies of water over which Congress has jurisdiction under its authority to regulate commerce with foreign nations and among the several States, or upon any part of the public lands and reservations of the United States * * *.' (Italics added.)
8
By § 4(g) the Commission is given authority to investigate the actual or intended occupancy of 'public lands' for the purpose of developing electric power and to issue such order as it may find 'appropriate, expedient, and in the public interest to conserve and utilize the * * * water-power resources of the region.' As already noted, § 10(a) provides that no license shall be granted unless in the judgment of the Commission the project 'will be best adapted to a comprehensive plan * * * for the improvement and utilization of water-power development, and for other beneficial uses * * *; and if necessary in order to secure such plan the Commission shall have authority to require the modification of any project * * * before approval.'2
9
Under these sections the Commission is plainly made the guardian of the public domain. The requirement that existing lines be fully utilized before additional lines are authorized would seem to be relevant to a decision under § 10(a) that the project submitted was consonant with the 'comprehensive plan' for the waterway. And the Commission might well determine under § 4(g) that if public lands are to be used for the transmission of power, conservation of the 'water-power resources of the region' require that public power as well as private power be transmitted over them.
10
Sections 4 and 10 speak specifically of the public domain waterways and public lands. Section 6 makes each license subject to all the terms and conditions of the Act and to 'such further conditions, if any, as the Commission shall prescribe in conformity with this Act * * *.' Section 6, read in the context of §§ 4 and 10, would seem to give ample authority to the Commission to attach the conditions imposed here. Protection of the public domain, conservation of water-power resources, development of comprehensive plans for the waterways—each of these might on the facts of a case be sufficient to authorize the grant of permission to a public utility company to use the public domain provided it agreed to use its excess capacity to transmit government power.
11
It is difficult for us to read § 201(f) as in any way affecting that power. Sections 201(f) and 202 deal with interconnections of facilities generally. They do not extend the new powers granted by Part II to government lines. On the other hand they do not purport to change or alter any power granted under Part I. They do not deal with the grant of licenses. They do not purport to lay down conditions for the issuance of licenses for use of the public domain. We therefore cannot construe the limitation on the new powers conferred by Part II as a repeal by implication of the powers over licensees that are deeply engrained in Part I of the Act and put there by the Congress for the purpose of protecting the public domain.
12
Reversed.
13
Mr. Justice BURTON and Mr. Justice CLARK took no part in the consideration or decision of this case.
1
An argument is made that the Commission's motion for clarification was untimely under the rules of the Court of Appeals governing petitions for rehearing. Assuming, arguendo, that the motion was a petition for rehearing within the meaning of those rules, it was entertained and considered on the merits, cf. Bowman v. Loperena, 311 U.S. 262, 61 S.Ct. 201, 85 L.Ed. 177; Pfister v. Northern Illinois Finance Corp., 317 U.S. 144, 149, 63 S.Ct. 133, 137, 87 L.Ed. 146, and the new judgment entered was erroneous.
2
Sections 4(e) and 10(a) appeared in the Federal Water Power Act of 1920, 41 Stat. 1063 1065, 1068. Section 4(g) was added by the Public Utility Holding Company Act of 1935, 49 Stat. 838, 841.
| 89
|
344 U.S. 25
73 S.Ct. 80
97 L.Ed. 23
NATHANSONv.NATIONAL LABOR RELATIONS BOARD.
No. 33.
Argued Oct. 23, 1952.
Decided Nov. 10, 1952.
Mr. Joseph Kruger, Boston, Mass., for petitioner.
Mr. Mozart G. Ratner, Washington, D.C., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Respondent, the National Labor Relations Board, issued a complaint against the present bankrupt company alleging unfair labor practices, and, after appropriate proceedings, ordered the bankrupt to pay certain employees back pay which they had lost on account of an unfair labor practice of the bankrupt. Before the order was enforced by the Court of Appeals an involuntary petition had been filed against the company. Thereafter the Court of Appeals entered its decree, enforcing the Board's order. In due course the Board filed a proof of claim for the back pay which was disallowed by the referee. The District Court set aside the disallowance. 100 F.Supp. 489. The Court of Appeals affirmed, 194 F.2d 248, holding that the Board's order is a provable claim in bankruptcy, that the Board can liquidate the claim, and that it is entitled to priority as a debt owing to the United States under § 64, sub. a(5) of the Act, 11 U.S.C.A. § 104, sub. a(5). The petition for certiorari was granted because of a conflict on the question of priority between that decision and National Labor Relations Board v. Killoren, 122 F.2d 609, decided by the Court of Appeals of the Eighth Circuit.
2
We think the Board is a creditor as respects the back pay awards, within the meaning of the Bankruptcy Act.1 The Board is the public agent chosen by Congress to enforce the National Labor Relations Act, 29 U.S.C.A. § 151 et seq. Amalgamated Utility Workers v. Consolidated Edison Co. of New York, 309 U.S. 261, 269, 60 S.Ct. 561, 565, 84 L.Ed. 738. A back pay order is a reparation order designed to vindicate the public policy of the statute by making the employees whole for losses suffered on account of an unfair labor practice. Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 197, 61 S.Ct. 845, 854, 85 L.Ed. 1271. Congress has made the Board the only party entitled to enforce the Act. A back pay order is a command to pay an amount owed the Board as agent for the injured employees. The Board is therefore a claimant in the amount of the back pay.
3
The claim is provable as a debt founded upon an 'implied' contract within the meaning of § 63, sub. a(4) of the Bankruptcy Act.2 It is an indebtedness arising out of an obligation imposed by statute—an incident fixed by law to the employer-employee relationship. A liability based on quasi-contract is one on an 'implied' contract within the meaning of § 63, sub. a(4) of the Bankruptcy Act. See Brown v. O'Keefe, 300 U.S. 598, 606—607, 57 S.Ct. 543, 548, 81 L.Ed. 827.
4
We do not, however, agree with the lower court that this claim, enforceable by the Board, is a debt due to the United States within the meaning of R.S. § 3466, 31 U.S.C.A. § 191, and therefore entitled to priority under § 64, sub. a(5) of the Bankruptcy Act. It does not follow that because the Board is an agency of the United States, any debt owed it is a debt owing the United States within the meaning of R.S. § 3466. The priority granted by that statute was designed 'to secure an adequate public revenue to sustain the public burthens and discharge the public debts.' See United States v. State Bank of North Carolina, 6 Pet. 29, 35, 8 L.Ed. 308. There is no function here of assuring the public revenue. The beneficiaries of the claims are private persons as was the receiver in American Surety Co. v. Akron Savings Bank, 212 U.S. 557, 29 S.Ct. 686, 53 L.Ed. 651.
5
It is true that Bramwell v. U.S. Fidelity & Guaranty Co., 269 U.S. 483, 46 S.Ct. 176, 70 L.Ed. 368, extended the priority to a claim of the United States for Indian moneys. But that case rests on the status of the Indians as wards of the United States, see Bowling v. United States, 233 U.S. 528, 34 S.Ct. 659, 58 L.Ed. 1080 and the continuing responsibility which it has for the protection of their interests. See United States v. Rickert, 188 U.S. 432, 444, 23 S.Ct. 478, 483, 47 L.Ed. 532; Board of Commissioners of Creek County v. Seber, 318 U.S. 705, 63 S.Ct. 920, 87 L.Ed. 1094. We cannot extend that reasoning so as to give priority to a claim which the United States is collecting for the benefit of a private party. See American Surety Co. v. Akron Savings Bank, supra. The beneficiaries here are not wards of the federal government; they are wage claimants who were discriminated against by their employer. The Board has eliminated the discriminated by the back pay order; and enforcement of its order has been directed by the Court of Appeals. The full sanction of the National Labor Relations Act has therefore been placed behind the order. The Board argues that the interest of the United States in eradicating unfair labor practices is so great that the back pay order should be given the additional sanction of priority in payment. Whether that should be done is a legislative decision. The contest now is no longer between employees and management but between various classes of creditors. The policy of the National Labor Relations Act is fully served by recognizing the claim for back pay as one to be paid from the estate. The question whether it should be paid in preference to other creditors is a question to be answered from the Bankruptcy Act. When Congress came to claims for unpaid wages it did not grant all of them priority. It limited the priority to $600 for each claimant and even then only allowed it as respects wages earned within three months before the date of the commencement of the proceedings. § 64, sub. a(2). We would depart from that policy if we granted the priority to one class of wage claimants irrespective of the amount of the claim or the time of its accrual. The theme of the Bankruptcy Act is 'equality of distribution', Sampsell v. Imperial Paper & Color Corp., 313 U.S. 215, 219, 61 S.Ct. 904, 907, 85 L.Ed. 1293; and if one claimant is to be preferred over others, the purpose should be clear from the statute. We can find in the Bankruptcy Act no warrant for giving these back pay awards any different treatment than other wage claims enjoy.
6
The trustee claims that the liquidation of the back pay award should not have been referred to the Board. Section 10(c) of the National Labor Relations Act authorizes the Board, once an unfair labor practice has been found, to require, inter alia, the person who committed it to 'take such affirmative action, including reinstatement of employees with or without back pay, as will effectuate the policies of this Act.' The fixing of the back pay is one of the functions confided solely to the Board. At the time an order of the Board is enforced the amount of back pay is often not computed. Once an enforcement order issues the Board must work out the details of the back pay that is due and the reinstatement. of employees that has been directed. This may be done by negotiation; or it may have to be done in a proceeding before the Board. The computation of the amount due may not be a simple matter. It may require, in addition to the projection of earnings which the employee would have enjoyed had he not been discharged and the computation of actual interim earnings, the determination whether the employee wilfully incurred losses, whether the back pay period should be terminated because of offers of reinstatement or the withdrawal of the employee from the labor market, whether the employee received equivalent employment, and the like. See Phelps Dodge Corp. v. National Labor Relations Board, supra, 313 U.S. at page 190 et seq., 61 S.Ct. at page 850 et seq. Congress made the relation of remedy to policy an administrative matter, subject to limited judicial review, and chose the Board as its agent for the purpose.
7
The bankruptcy court normally supervises the liquidation of claims. See Gardner v. State of New Jersey, 329 U.S. 565, 573, 67 S.Ct. 467, 471, 91 L.Ed. 504. But the rule is not inexorable. A sound discretion may indicate that a particular controversy should be remitted to another tribunal for litigation. See Thompson v. Magnolia Petroleum Co., 309 U.S. 478, 483, 60 S.Ct. 628, 630, 84 L.Ed. 876. And where the matter in controversy has been entrusted by Congress to an administrative agency, the bankruptcy court normally should stay its hand pending an administrative decision. That was our ruling in Smith v. Hoboken R. R. Warehouse & S.S. Connecting Co., 328 U.S. 123, 66 S.Ct. 947, 90 L.Ed. 1123 and Thompson v. Texas Mexican R. Co., 328 U.S. 134, 66 S.Ct. 937, 90 L.Ed. 1132, where we directed the reorganization court to await administrative rulings by the Interstate Commerce Commission before adjudicating the controversies before it. Like considerations are relevant here. It is the Board, not the referee in bankruptcy nor the court, that has been entrusted by Congress with authority to determine what measures will remedy the unfair labor practices. We think wise administration therefore demands that the bankruptcy court accommodate itself to the administrative process and refer to the Board the liquidation of the claim, giving the Board a reasonable time for its administrative determination.
8
In summary, we agree with the Court of Appeals that the claim was provable by the Board and that the computation of the amount of the award was properly referred to the Board. But since we disagree with the ruling on the priority of the claim we reverse the judgment and remand the cause for proceedings in conformity with this opinion.
9
It is so ordered.
10
Reversed and remand with directions.
11
Mr. Justice JACKSON, with whom Mr. Justice BLACK joins, dissenting.
12
I think we should affirm the judgment below. I agree that the claim is one which can be proved in bankruptcy by the United States. The same reasoning which enables the Government to assert the claim would seem to enable it to assert the priority.
13
The claims which the United States asserts herein are something more than merely private indebtedness. The debtor's liability, enforceable only by the Government, is one of the most important sanctions to effectuate the policy of the National Labor Relations Act. That is one, at least, of the reasons why Congress did not see fit to leave prosecution of these usually small claims to scattered and often impecunious individual wage earners in a multiplicity of actions.
14
I see nothing in the policy of the Bankruptcy Act which precludes these claims, allowed in the Government's right and in its name, from sharing in the Government's general priority. Title 11, § 104, sub. a sets up five levels of priority: first is administration expenses; second, wages not to exceed $600 to each claimant which have been earned within three months before commencement of bankruptcy proceedings; third, certain costs and expenses not material here; fourth, taxes legally due and owing by the bankrupt to the United States, or any state or any subdivision thereof; fifth, debts owing to any person, including the United States, who under its laws is entitled to priority.
15
It can hardly be questioned that Labor Board awards constitute wages of their equivalent, but beneficiaries of these awards rarely can comply with the three-months time limitation for wage priority because of the lag occasioned by Labor Board proceedings to establish the unlawfulness of their discharge by the employer. If they could do so, their claims would doubtless take the second priority and be paid in preference to everything except administration expenses.
16
The judgment below denies these claims second priority but admits them to the fifth class. Ahead of them, in the fourth class, are all taxes owing to the United States and to any state or subdivision, and this obviously is the priority intended to protect the federal revenues. Only after all revenue requirements are thus satisfied does the judgment below allow these claims to be paid. The Bankruptcy Act in this fifth category certainly contemplates a class of Government claims not arising out of taxation. It does not seem to me inappropriate to consider the relation of the Government to the wronged laborer established by the Labor Relations Act as analogous to the Government's wardship toward Indians, found to warrant invocation of its priority in Bramwell v. United States Fidelity & Guaranty Co., 269 U.S. 483, 46 S.Ct. 176, 70 L.Ed. 368. The slogan 'equality of distribution' can have little meaning when we are considering a section of a statute designed to establish inequality by a series of priorities. To protect the bankrupt's estate against inequalities equalities caused by the unlawful preferences attempted by the bankrupt is one thing; to invoke such a 'theme' to level out priorities created by statute is another.
17
While the legislation is not as complete or clear as one would like, supplying the rule for conflicts unanticipated by Congress is a large part of our work and I think the courts below have arrived at a practical solution of this question that accomplishes the purposes both of the Bankruptcy Act and the National Labor Relations Act. I would therefore affirm.
1
"Creditor' shall include anyone who owns a debt, demand, or claim provable in bankruptcy, and may include his duly authorized agent, attorney, or proxy'. 11 U.S.C. § 1(11), 11 U.S.C.A. § 1(11).
2
'Debts of the bankrupt may be proved and allowed against his estate which are founded upon * * *; (4) an open account, or a contract express or implied'. § 63, sub. a(4), 11 U.S.C. § 103, sub. a(4), 11 U.S.C.A. § 103, sub. a(4).
| 1112
|
344 U.S. 33
73 S.Ct. 67
97 L.Ed. 54
UNITED STATES et al.v.L. A. TUCKER TRUCK LINES, Inc.
No. 18.
Argued Oct. 20, 1952.
Decided Nov. 10, 1952.
Mr. Edward M. Reidy, Washington, D.C., for appellants.
Mr. B. W. La Tourette, St. Louis, Mo., for appellee.
Mr. Justice JACKSON delivered the opinion of the Court.
1
One Cunningham applied to the Interstate Commerce Commission for a certificate of public convenience and necessity to authorize extension of his existing motor carrier route.1 A railroad and eleven motor carriers, including appellee, intervened to oppose. The issues were referred to an examiner who after hearing recommended that, with exceptions not material here, a certificate be granted. Appellee excepted, whereupon Division 5 of the Commission, in substance, approved the recommendation. Appellee requested reconsideration by the full Commission, which was denied, and then petitioned for 'extraordinary relief,' which also was refused. The Commission thereupon issued a certificate to Cunningham. Appellee, upon the ground that the evidence did not show need for the additional transportation service, petitioned the District Court to set aside the certificate and order. The Commission and the United States answered and a three-judge court was convened.
2
On the day appointed for hearing, appellee moved for leave to amend its petition to raise, for the first time, a contention that the Commission's action was invalid for want of jurisdiction because the examiner had not been appointed pursuant to § 11 of the Administrative Procedure Act.2 The District Court allowed amendment and, upon proof that the appointment had not been in accordance with that Act, invalidated the order and certificate without going into the merits of the issue tendered in the original complaint.3 This appeal by the United States and the Interstate Commerce Commission raises but a single question whether such an objection, first made at that stage of the proceedings, was not erroneously entertained. We hold that it was.
3
Appellee did not offer nor did the court require any excuse for its failure to raise the objection upon at least one of its many opportunities during the administrative proceeding. Appellee does not claim to have been misled or in any way hampered in ascertaining the facts about the examiner's appointment. It did not bestir itself to learn the facts until long after the administrative proceeding was closed and months after the case was at issue in the District Court, at which time the Commission promptly supplied the facts upon which the contention was based and sustained.
4
The apparent reason for complacency was that it was not actually prejudiced by the conduct or manner of appointment of the examiner. There is no suggestion that he exhibited bias, favoritism or unfairness. Nor is there ground for assuming it from the relationships in the proceeding. He did not act and was not expected to act both as prosecutor and judge. The Commission, which appointed him, did not institute or become a party in interest to the proceeding. Neither it nor its examiner had any function except to decide justly between contestants in an adversary proceeding. The issue is clearly an afterthought, brought forward at the last possible moment to undo the administrative proceedings without consideration of the merits and can prevail only from technical compulsion irrespective of considerations of practical justice.
5
In Riss & Co. v. United States, 341 U.S. 907, 71 S.Ct. 620, 95 L.Ed. 1345, this Court held that officers hearing applications for certificates of convenience and necessity under § 207(a) of the Interstate Commerce Act are subject to the provisions of the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq.4 But timeliness of the objection was not before us, because in that case the examiner's appointment had been twice challenged in the administrative proceedings, once, as it should have been, before the examiner at the hearings and again before the Commission on a petition for rehearing. That decision established only that a litigant in such a case as this who does make such demand at the time of hearing is entitled to an examiner chosen as the Act prescribes.
6
We have recognized in more than a few decisions,5 and Congress has recognized in more than a few statutes,6 that orderly procedure and good administration require that objections to the proceedings of an administrative agency be made while it has opportunity for correction in order to raise issues reviewable by the courts. It is urged in this case that the Commission had a predetermined policy on this subject which would have required it to overrule the objection if made. While this may well be true, the Commission is obliged to deal with a large number of like cases. Repetition of the objection in them might lead to a change of policy, or, if it did not, the Commission would at least be put on notice of the accumulating risk of wholesale reversals being incurred by its persistence.7 Simple fairness to those who are engaged in the tasks of administration, and to litigants, requires as a general rule that courts should not topple over administrative decisions unless the administrative body not only has erred but has erred against objection made at the time appropriate under its practice.
7
It is argued, however, that this case falls outside of this general rule and the result below is technically compelled because, if the appointment of the hearing examiner was irregular, the Commission in some manner lost jurisdiction and its order is totally void. This inference is drawn from our decision in Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616, for it is contended we could not have sustained a collateral attack by writ of habeas corpus in that case unless we found the defect in that examiner's appointment to be one of jurisdictional magnitude. We need not inquire what should have been the result upon that case had the Government denied or the Court considered whether the objection there sustained was taken in time. The effect of the omission was not there raised in briefs or argument nor discussed in the opinion of the Court. Therefore, the case is not a binding procedent on this point.8 Even as to our own judicial power or jurisdiction, this Court has followed the lead of Chief Justice Marshall who held that this Court is not bound by a prior exercise of jurisdiction in a case where it was not questioned and it was passed sub silentio.9
8
The question not being foreclosed by precedent, we hold that the defect in the examiner's appointment was an irregularity which would invalidate a resulting order if the Commission had overruled an appropriate objection made during the hearings. But it is not one which deprives the Commission of power or jurisdiction, so that even in the absence of timely objection its order should be set aside as a nullity.
9
The judgment is reversed and the cause remanded to the District Court for determination on the merits.
10
Reversed and remanded.
11
Mr. Justice FRANKFURTER, dissenting.
12
Were we dispensing what is complacently called oriental justice, according to which the merits of the individual case alone, so one is told, determine the result, I would join my brethren in reversing this judgment. For I see no reason to disagree with the Court's view that in this case non-compliance by the Interstate Commerce Commission with the requirements of the Administrative Procedure Act did not prejudice the appellee. Nor do I deny that some rights personal to a party may be waived, either explicitly or by failure to assert them.
13
But I find no explicit waiver here, nor is it clear to me how the appellee can be charged with knowledge of the official status of the examiner on the basis of whose report the Commission took action adverse to it. In any event, the requirement of the Administrative Procedure Act that proceedings which lead to an administrative adjudication must be conducted by an independent hearing examiner is not something personal to a party. It is a requirement designed to assure confidence in the administrative process by defining and limiting the various organs through which that process is allowed to function.
14
I do not use the term 'jurisdiction' because it is a verbal coat of too many colors. But we are dealing with legislation which sought to remedy what were believed to be evils in the way in which administrative agencies exercised their authority prior to the enactment of the Administrative Procedure Act of June 11, 1946. That Act accordingly prohibited the commingling of the conflicting functions exercised by these agencies. I do say, therefore, that it created unwaivable limitations upon the power of these agencies, as much so as do the definitions in judiciary acts of the different categories of cases which different courts are empowered to hear and decide. The limitations upon the power of the Interstate Commerce Commission to act, imposed by the command that it must do so only in accordance with the requirements of the Administrative Procedure Act, are thus not within the dispensing power of any litigant. They bind and confine the Commission itself.
15
I cannot otherwise read what we decided in Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616, and Riss & Co., Inc. v. United States, 341 U.S. 907, 71 S.Ct. 620, 95 L.Ed. 1345. I do not rest my conclusion on any assumption of jurisdiction sub silentio in the Wong Yang Sung case. What I am resting on is the significance we attached to the requirement of independent hearing examiners as inherent in the process of administrative adjudication.
16
After we decided Wong Yang Sung v. McGrath, supra, Congress was promptly asked to relieve the deportation process of this requirement and it did so. See Chapter III of The Supplemental Appropriations Act, 1951, Act of September 27, 1950, Pub.L. No. 843, 8 U.S.C.A. § 155a. After we made the same ruling as to the Interstate Commerce Commission, Congress was promptly asked to validate proceedings previously conducted by the Commission in disregard of the requirements for independent hearing examiners. Congress has chosen not to enact such remedial legislation.1 I do not construe this want of action as controlling upon the issue before us. I refer to this subsequent legislative history merely as an indication of the path by which undesirable consequences flowing from our decision in Riss & Co., Inc. v. United States, supra, may be corrected without injustice. Situations like this arise from time to time when decisions of this Court in the observance of law suggest corrective legislation. See e.g., United States v. Heinszen & Co., 206 U.S. 370, 27 S.Ct. 742, 51 L.Ed. 1098.
17
Mr. Justice DOUGLAS, dissenting.
18
This decision gives a capricious twist to the law. One would assume from a reading of the opinion in Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616, that the failure of a federal agency to use the type of examiner prescribed by Congress in the Administrative Procedure Act, 60 Stat. 237, 5 U.S.C. § 1001 et seq., 5 U.S.C.A. § 1001 et seq., vitiated the proceedings whether objection was raised or not. The Congress decided to separate the judicial functions of examiners from the investigative and prosecuting functions. It required the separation in cases involving property interests as well as those involving personal liberty. It condemned as unfair a practice which had grown up of allowing one man to be the police officer, the prosecutor, and the judge.
19
Violation of that requirement led the Court in Wong Yang Sung's case to issue a writ of habeas corpus to save an alien from deportation where the hearing examiner did not meet the requirements of the Administrative Procedure Act. That was a collateral attack on the administrative proceeding, successfully made even though no objection to the examiner was raised at the hearing.*
20
The objection raised in the present case likewise was not made at the hearing; but it was made before review of the order had been completed. It would seem, therefore, that reversal of this administrative order would follow a fortiori from Wong Yang Sung's case.
21
No one knows how the commingling of police, prosecutor and judicial functions in one person may affect a particular decision. In some situations it might make no difference; in others it might subtly corrupt the administrative process. The only important consideration for us is that Congress has condemned the practice; and we as supervisors of the federal system should see to it that the law is enforced, not selectively but in all cases coming before us.
22
Of course, an agency that flouts the mandate for fair examiners does not lose jurisdiction of the case. Even habeas corpus is no longer restricted to the testing of 'jurisdiction' in the historic sense. See Johnson v. Zerbst, 304 U.S. 458, 467, 58 S.Ct. 1019, 1024, 82 L.Ed. 1461; Bowen v. Johnston, 306 U.S. 19, 24, 59 S.Ct. 442, 444, 83 L.Ed. 455. But the action of the Commission in the present case created an error that permeates the entire proceeding. It is error that goes to the very vitals of the case. I would therefore set aside the order and send the case back for a hearing that meets the statutory standards of fairness. I would make the rule of Wong Yang Sung's case good for more than the day and the occasion.
1
49 U.S.C. § 307, 49 U.S.C.A. § 307.
2
5 U.S.C. § 1010, 5 U.S.C.A. § 1010.
3
100 F.Supp. 432.
4
Our decision in the Riss case was announced after the administrative proceeding herein, but before the District Court's hearing. Riss (96 F.Supp. 452) apparently prompted appellee to raise the point about the examiner's qualifications in the District Court.
5
Spiller v. Atchison, T. & S.F.R. Co., 253 U.S. 117, 130, 40 S.Ct. 466, 471, 64 L.Ed. 810; United States ex rel. Vajtauer v. Commissioner, 273 U.S. 103, 113, 47 S.Ct. 302, 306, 71 L.Ed. 560; United States v. Northern Pacific R. Co., 288 U.S. 490, 494, 53 S.Ct. 406, 407, 77 L.Ed. 914; Unemployment Compensation Commission of Alaska v. Aragon, 329 U.S. 143, 155, 67 S.Ct. 245, 251, 91 L.Ed. 136.
6
Section 9(a) of the Securities Act of 1933, 15 U.S.C. § 77i, 15 U.S.C.A. § 77i; § 25(a) of the Securities Exchange Act of 1934, 15 U.S.C. § 78y, 15 U.S.C.A. § 78y; § 24 of the Public Utility Holding Company Act, 15 U.S.C. § 79x, 15 U.S.C.A. § 79x; § 10 of the Fair Labor Standards Act, 29 U.S.C. § 210, 29 U.S.C.A. § 210; § 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e), 29 U.S.C.A. § 160(e).
7
The Government informs us that in about five thousand cases commenced after the effective date of the Administrative Procedure Act, orders are for an indefinite period vulnerable to attack if no timely objection during the administrative process is required. The policy of the Commission is to grant application for rehearing in cases where applicant made the objection before the examiner. Since its established practice is not to consider issues not raised before the examiner, it will refuse rehearings in other cases.
8
Webster v. Fall, 266 U.S. 507, 45 S.Ct. 148, 69 L.Ed. 411.
9
United States v. More, 3 Cranch 159, 172, 2 L.Ed. 397; Snow v. United States, 118 U.S. 346, 354, 6 S.Ct. 1059, 1063, 30 L.Ed. 207; Cross v. Burke, 146 U.S. 82, 87, 13 S.Ct. 22, 23, 36 L.Ed. 896; Louisville Trust Co. v. Knott, 191 U.S. 225, 236, 24 S.Ct. 119, 123, 48 L.Ed. 159; Arant v. Lane, 245 U.S. 166, 170, 38 S.Ct. 94, 96, 62 L.Ed. 223.
1
A remedial bill was successful in the House but failed in the Senate. The bill was H.R. 5045. See H.R.Rep.No.1637, 82d Cong., 2d Sess.
*
And the alien in that case, like the respondent here, was represented by counsel in the administrative proceedings.
| 89
|
344 U.S. 48
73 S.Ct. 125
97 L.Ed. 77
JOHNSONv.NEW YORK, N.H. & H. R. CO.
No. 40.
Argued Oct. 23, 24, 1952.
Decided Nov. 17, 1952.
Jacquin Frank, New York City, for petitioner.
Mr. Robert M. Peet, New York City, for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
This case raises questions concerning the power of a Court of Appeals to render judgment for a defendant instead of merely ordering a new trial after it has set aside a jury verdict and trial court judgment for a plaintiff.
2
The petitioner sued the respondent railroad under the Jones Act, 46 U.S.C. § 688, 46 U.S.C.A. § 688, for wrongful death of her husband. When the evidence was all in, the railroad moved to dismiss the complaint and also asked for a directed verdict in its favor on the grounds that no negligence had been proven and that the deceased had been responsible for his own death. The trial court reserved decision on the motion, submitted the case to the jury, a verdict of $20,000 was returned for petitioner, and judgment was entered on the verdict. Within ten days after reception of the verdict the railroad moved to have the verdict set aside on the ground that it was excessive, contrary to the law, to the evidence, to the weight of the evidence. More than two months later this motion was denied; in the same order denying that motion the court also denied the preverdict motions for dismissal and for a directed verdict on which action had been reserved prior to verdict. Holding that the motion for a directed verdict should have been granted, the Court of Appeals reversed. 194 F.2d 194. Both parties agree that this reversal requires the District Court to enter judgment for the railroad notwithstanding the verdict, thereby depriving petitioner of another trial. Whether the Court of Appeals could direct such a judgment consistently with Rule 50(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A.,1 is the single question we granted certiorari to review. 343 U.S. 975, 72 S.Ct. 1073.
3
On several recent occasions we have considered Rule 50(b). We have said that in the absence of a motion for judgment notwithstanding the verdict made in the trial court within ten days after reception of a verdict the rule forbids the trial judge or an appellate court to enter such a judgment. Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 67 S.Ct. 752, 91 L.Ed. 849. We repeated that construction of the rule in Globe Liquor Co. v. San Roman, 332 U.S. 571, 68 S.Ct. 246, 92 L.Ed. 177, and reemphasized it in Fountain v. Filson, 336 U.S. 681, 69 S.Ct. 754, 93 L.Ed. 971.
4
Although this respondent made several motions it did not as the rule requires move within ten days after verdict 'to have judgment entered in accordance with his (its) motion for a directed verdict'. We are told, however, in respondent's brief that its motion to set aside the verdict 'was intended to be a motion for judgment in its favor or for a new trial' and that '(o)bviously respondent did not merely want the verdict to be set aside but wanted the relief that invariably follows such a setting aside on the grounds urged: a judgment in its favor or a new trial.' The defect in this argument is that respondent's motions cannot be measured by its unexpressed intention or wants. Neither the trial judge nor the Court of Appeals appears to have treated the motion to set aside the verdict as asking for anything but that. And surely petitioner is not to have her opportunity to remedy any shortcomings in her case jeopardized by a failure to fathom the unspoken hopes of respondent's counsel. Respondent's motion should be treated as nothing but what it actually was, one to set aside the verdict—not one to enter judgment notwithstanding the verdict.
5
Respondent separately argues that a trial judge's express reservation of decision on motion for a directed verdict relieves a party from any duty whatever under 50(b) to make a motion for judgment after verdict. This contention not only flies in the teeth of the rule's unambiguous language but if sustained would undermine safeguards for litigants some of which have been pointed out in prior cases. The rule carefully sets out the steps and procedures to be followed by the parties as a prerequisite to entry of judgments notwithstanding an adverse jury verdict. Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 250, 61 S.Ct. 189, 193, 85 L.Ed. 147. It was adopted following confusion in this field brought about in part by three cases decided by this Court, Slocum v. New York Life Ins. Co., 228 U.S. 364, 33 S.Ct. 523, 57 L.Ed. 879; Baltimore & Carolina Line, Inc., v. Redman, 295 U.S. 654, 55 S.Ct. 890, 79 L.Ed. 1636; and Aetna Ins. Co. v. Kennedy, to Use of Bogash, 301 U.S. 389, 57 S.Ct. 809, 81 L.Ed. 1177. The Slocum case was understood to hold that the Seventh Amendment forbade United States courts to enter judgments in favor of one party after jury verdict in favor of the other. The Redman case tried in New York held that the Seventh Amendment did not forbid entry of judgment notwithstanding a verdict where, prior to the verdict, the trial judge, following New York procedure, had expressly reversed his decision on a motion for a directed verdict. The New York District Court was authorized to follow this state practice because of the Conformity Act, R.S.1878, § 914. Thus the Redman case did not purport to adopt New York procedure for the general guidance of federal courts. Later the Kennedy case cast doubt on the Redman holding, at least as to its scope. In the Kennedy case plaintiff's request for directed verdict had not been followed by a timely motion for judgment notwithstanding the verdict as required by Pennsylvania law. Failure to conform to this Pennsylvania practice was a reason given by this Court for finding lack of power in the District Court to enter judgment contrary to the verdict.2
6
Rule 50(b) was designed to provide a precise plan to end the prevailing confusion about directed verdicts and motions for judgments notwithstanding verdicts. State procedure was no longer to control federal courts as it had in the Redman and Kennedy cases. Federal courts were to be guided by this new rule, which provided its own exclusive procedural program. It rejected the New York procedure applied in the Redman case, which permitted judgment to be set aside even though no motion to do so had been filed after verdict. Instead it approached more closely the Pennsylvania rule, relied on in the Kennedy case, under which judgments contrary to verdicts would not be awarded in the absence of specific timely motions for them. But Rule 50(b) departed from the New York and Pennsylvania procedures by making it wholly unnecessary for a judge to make an express reservation of his decision on a motion for directed verdict. The rule itself made the reservation automatic. A court is always 'deemed to have submitted the action to the jury subject to a later determination' of the right to a direct verdict if a motion for judgment notwithstanding the verdict is made 'Within 10 days after the reception of a verdict * * *.' This requirement of a timely application for judgment after verdict is not an idle motion. This verdict solves factual questions against the postverdict movant and thus emphasizes the importance of the legal issues. The movant can also ask for a new trial either for errors of law or on discretionary grounds. The requirement for timely motion after verdict is thus an essential part of the rule, firmly grounded in principles of fairness. See Cone v. West Virginia Pulp & Paper Co., supra, 330 U.S. at pages 217—218, 67 S.Ct. at pages 755—756. Poor support for its abandonment would be afforded by the mere fact that a judge makes an express reservation of a decision which the rule reserves regardless of what the judge does.
7
Rule 50(b) as written and as construed by us is not difficult to understand or to observe. Rewriting the rule to fit counsel's unexpressed wants and intentions would make it easy to reintroduce the same type of confusion and uncertainty the rule was adopted to end. In 1946 this Court was asked to adopt an amendment to the rule which would have given appellate courts power to enter judgments for parties who, like this respondent, had made no timely motion for judgment notwithstanding the verdict. We did not adopt the amendment then. 5 Moore, Federal Practice (2d ed. 1951) 50.01(7), 50.01(9), 50.11. No sufficiently persuasive reasons are presented why we should do so now under the guise of interpretation.
8
Respondent made a motion to set aside the verdict and for new trial within the time required by Rule 50(b). It failed to comply with permission given by 50(b) to move for judgment n.o.v. after the verdict. In this situation respondent is entitled only to a new trial, not to a judgment in its favor. The judgment of the Court of Appeals is vacated and the cause is remanded to it for further proceedings consistent with this opinion.3 It is so ordered.
9
Judgment of Court of Appeals vacated and cause remanded with directions.
10
Mr. Justice FRANKFURTER, whom Mr. Justice JACKSON, Mr. Justice BURTON and Mr. Justice MINTON join, dissenting.
11
If the Court's opinion in this case merely disposed of a particular litigation by finding error in a decision of the Court of Appeals that a judgment be entered for the defendant in a negligence suit, an expression of dissent, let alone a dissenting opinion, would not be justified. If that were all there were to it, neither would the Court have been justified in granting the petition for certiorari. The same considerations which made the case one of general importance for review here make it appropriate to spell out the grounds of dissent.
12
Not the least important business of this Court is to guide the lower courts and the Bar in the effective and economical conduct of litigation. That is what is involved in this case. The immediate issue is the construction of one of the important Rules of Civil Procedure. That construction in turn depends upon our basic attitude toward those Rules—whether we take their force to lie in their very words, treating them as talismanic formulas, or whether we believe they are to be applied as rational instruments for doing justice between man and man in cases coming before the federal courts.
13
Our concern is with Rule 50(b) of the Federal Rules of Civil Procedure.1 The Rules became effective on September 16, 1938. Two years later, in Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147, this Court was called upon to determine the appropriate procedure under Rule 50(b). To do so, the Court had to consider the experience that led to the promulgation of the Rule. Its aim was to speed litigation without prejudicing the legitimate interests of litigants; to see to it that full and fair consideration is given to the issues litigants raise but that litigation does not become a socially wasteful game. The unanimous opinion of the Court in the Montgomery Ward case gave this guiding direction: '* * * the courts should so administer the rule as to accomplish all that is permissible under its terms.' 311 U.S. at page 253, 61 S.Ct. at page 195. This attitude was made specific by the statement that if the trial judge rules, as he properly should, on alternative motions for judgment n.o.v. and for a new trial, and denies them both, the appellate court may reverse the former action and direct the entry of judgment n.o.v. 311 U.S. at page 254, 61 S.Ct. at page 195, 85 L.Ed. 147.
14
Subsequent to Montgomery Ward & Co. v. Duncan, supra, three cases came here in which we reversed because Courts of Appeals disregarded the procedure outlined in that case in one significant respect. The Courts of Appeals directed the entry of judgments n.o.v. although no motions for such judgments had been made in the trial courts. Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 67 S.Ct. 752, 91 L.Ed. 849; Globe Liquor Co. v. San Roman, 332 U.S. 571, 68 S.Ct. 246, 92 L.Ed. 177; Fountain v. Filson, 336 U.S. 681, 69 S.Ct. 754, 93 L.Ed. 971. Our decisions do not suggest, however, that the party in whose favor a Court of Appeals directs a judgment n.o.v. is required to use a ritualistic formula in the District Court. The only relevant inquiry in this case, therefore, is whether the fair meaning of the proceedings after a verdict was rendered in fact constituted disposition of a motion to enter judgment n.o.v. This is so unless Rule 50(b) commands that after the reception of a verdict a party must not only 'move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict', but must do so by a particular form of words. The Rule does not require this. Nothing in the Rule, either by its terms or its origin, requires some abracadabra of obedience to it.
15
A comparison of the facts in the Cone, Globe and Fountain cases with those in this case leaves no doubt that this case has nothing in common with Cone, Globe and Fountain. A tabular analysis of the procedural facts in all four cases is appended. There were no motions n.o.v. in Cone, Globe and Fountain, and the failure to make them resulted in a prejudice to the losing parties in the Courts of Appeals in those three cases which is wholly wanting here.2
16
In each of the three earlier cases the decision of the Court of Appeals either applied to the facts a legal theory other than the one on which the parties proceeded in the trial court, or for the first time assigned decisive importance to the choice by the losing party of a legal theory on which to claim or resist recovery. Cone was tried on the assumption that proof of constructive possession would sustain the cause of action; the Court of Appeals, 4 Cir., 153 F.2d 576, definitively disposed of the litigation by holding that actual possession must be proved. In Globe the plaintiff secured a verdict on the basis of an express warranty in a sale; the Court of Appeals, 7 Cir., 160 F.2d 800, held that he had failed in this and directed the entry of a judgment for the seller, even though on a new trial, which alone was what the seller had asked, it would have been open for the buyer, with the aid of additional evidence, to succeed on proof of an implied warranty. In Fountain the plaintiff sued to have himself declared the beneficiary of a resulting trust in certain realty. While the Court of Appeals, 84 U.S.App.D.C. 46, 171 F.2d 999, agreed with the District Court that New Jersey law precluded the imposition of such a resulting trust, it directed the District Court to enter a personal money judgment for the plaintiff. In all three cases we held that the District Court never had opportunity to exercise the discretion which would have been open to it had the grounds on which the litigation went off in the Court of Appeals been relied on before the District Court in an appropriate motion.
17
In this case there was no such deviation from the trial issues. The case went to the jury on the issues of defendant's negligence in departing from an alleged common custom, and of causation. These issues were duly pressed before the trial judge after verdict. The case went against the petitioner in the Court of Appeals on one of them. In contrast to the situation in the other three cases no possible claim of surprise can here find nourishment. The Cone, Globe and Fountain cases, being decisively different from this case, cannot govern it.
18
Let me set out, side by side, so much as is pertinent in the motion made after the verdict in the Montgomery Ward case and the motion made in this case.
Montgomery Ward
Johnson
19
Comes the defendant, On behalf of the
20
Montgomery Ward & defendant, the New York,
21
Company, and files its New Haven & Hartford
22
motion praying that the Railroad, I move to set
23
jury's verdict herein aside the verdict on the
24
and the judgment ground
25
rendered and entered
26
thereon be set aside and
27
judgment entered herein
28
for the defendant
29
notwithstanding the
30
verdict, and its motion
31
for a new trial in the
32
alternative, and as
33
grounds therefor states: Montgomery Ward Johnson
A. * * * Motion
34
* * * to enter
35
judgment. * * *
36
1. That the verdict is that it is contrary to
37
contrary to the law. the law
38
2. That the verdict is and contrary to the
39
contrary to the evidence. evidence
3. That the verdict is
40
contrary to the law and
41
evidence.
42
* * * *
43
8. That the defendant and contrary to the
44
has failed to prove by weight of the evidence
45
a preponderance of the
46
evidence. * * *
B. * * * motion for
47
a new trial: (Specifications
1-8 same as
48
above.)
49
9. That the damages and excessive
50
found by the jury and
51
the verdict based
52
thereon were excessive.3
53
The difference between the two motions is nil. One was written and formally labelled and detailed. While the other was oral, it was cast in form familiar to New York practitioners and its meaning was no less clear. The District Judge's action demonstrates this. But under the Court's holding it is no longer sufficient to move for a directed verdict and then, within the time provided by the Rule, ask the trial judge either to grant judgment or a new trial. The Court so holds even though the trial judge already has expressly stated he has reserved for his consideration at that time (after verdict) the very issue which a motion for judgment n.o.v. would repeat. The obvious, which is left unsaid in colloquies between counsel and the court, must now be spoken. The redundant, omitted out of respect for a judge's intelligence and professional competence, must always be spelled out. The parties must be sure to indulge the ancient weakness of the law for stylized repetition, and it is necessary that the judge answer the same question twice before his answer is to be recognized. In this way do we conduce 'to the efficiency and the economy of the administration of justice.' Federal Rules of Civil Procedure, Proceedings of the Institute at Washington, D.C., and of the Symposium in New York City 87 (1938) (Chesnut, J.).
54
If on that fateful Friday the 13th, in April, 1951, sometime shortly after 10:30 in the morning when the jury's verdict was opened, the defendant had prefaced his argument by saying, 'Your Honor, before addressing myself to my pending motion for directed verdict, on which your Honor reserved decision, and which of course now necessarily is a motion for judgment n.o.v., I first want to renew that motion.' he would have avoided today's decision against him, although he would not have added one jot of information to that of counsel for the plaintiff or of the judge regarding the issues before the court for decision. To require this is to make Rule 50(b) read (added language in italics):
55
'Within 10 days after the reception of a verdict, party who has moved for a directed verdict may move to have the verdict and any judgment thereon set aside. Such a motion will be treated as a motion to have judgment entered in accordance with his motion for a directed verdict if he repeats the motion for directed verdict or states to the court that he now makes a 'motion for judgment notwithstanding the verdict." The Federal Rules of Civil Procedure are the product of the progress of centuries from the medieval court-room contest—a thinly disguised version of trial by combat—to modern litigation. 'Procedure is the means; full, equal and exact enforcement of substantive law is the end.' Pound, The Etiquette of Justice, 3 Proceedings Neb. St. Bar Assn. 231 (1909). This basic consideration underlies the Rules; with it in mind we construed Rule 50(b) in the Montgomery Ward case.
56
It has been said of the great Baron Parke: 'His fault was an almost superstitious reverence for the dark technicalities of special pleading, and the reforms introduced by the Common Law Procedure Acts of 1854 and 1855 occasioned his resignation.' Sir James Parke, 15 D.N.B. 226.
57
Baron Parke despaired prematurely. If he had waited another hundred years this Court today would have vindicated his belief that judges must be imprisoned in technicalities of their own devising, that obedience to lifeless formality is the way to justice.
58
APPENDIX.
59
Cone v. West Globe Liquor Fountain v. Johnson v.
60
Virginia Pulp Co. v. Filson N. Y., etc.
61
and Paper Co. San Roman 336 U.S. Co.
330 U.S. 212, 332 U.S. 571, 681, 69
67 S.Ct. 752 68 S.Ct. 246 S.Ct. 754
62
CAUSE OF Trespass. Contract. Resulting Wrongful
63
ACTION trust. death—Jones Act.
64
TRIAL Title and Existence of Existence of Existence of
65
ISSUES. possession. contract and resulting common
66
express trust under custom, and
67
warranty. deed and causation.
68
option.
69
PRE-VERDICT For directed For directed For summary For directed
70
MOTIONS. verdict, verdict, judgment, verdict, by
71
by defendant. by defendant. by defendant. defendant.
Denied. Denied. Granted. Decision
72
For directed reserved.
verdict,
73
by plaintiff.
74
Granted.
75
JUDGMENT. For plaintiff. For plaintiff. For defendant. For plaintiff.
76
POST-VERDICT For new trial, For new trial, None. To set aside
77
MOTIONS. by defendant; by defendant; the verdict,
78
denied. denied. by defendant;
79
No motion for No motion for denied on
80
judgment judgment ground that
81
n. o. v. n. o. v. evidence
82
sufficient
83
to support
84
cause of
85
action.
86
TIME ELAPSED 62 days. 8 days. Motion made
BETWEEN immediately
JUDGMENT after
87
AND MOTION. verdict.
88
DISPOSTION District Court District Court District Court District
89
IN C. A. directed to directed to directed to Court
90
enter enter enter directed
91
judgment for judgment for judgment for to enter
92
defendant. defendant. plaintiff. judgment for
93
153 F.2d 160 F.2d 171 F.2d defendant.
576. 800. 999. 194 F.2d
194.
94
DISPOSITION Reversed. Trial Reversed. Cone Reversed. C. A.
95
HERE judge must be case governs. judgment
96
given chance entered
97
to exercise "on a new
98
discretion to issue as
99
enter judgment to which the
100
n. o. v. or opposite party
101
grant a had no
102
new trial. opportunity to
103
present a
104
defense before
105
the trial
106
court." 336
U.S. at page
107
683, 69 S.Ct.
108
at page 755.
[Page 64 intentionally left blank]
109
Mr. Justice MINTON, dissenting.
110
I agree with all that Mr. Justice FRANKFURTER has said in upholding the action of the Court of Appeals in returning the case to the District Court with directions to enter a verdict for the defendant. I would add another reason why I think the action was valid.
111
After the Cone, Globe Liquor and Fountain cases were decided, Congress in 1948 revised the Judicial Code, and in 28 U.S.C. § 2106, 28 U.S.C.A. § 2106, clearly authorized the action taken by the Court of Appeals here. Section 2106 reads as follows:
112
'The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.'
113
To me, this statute is controlling. We found it controlling of the action of the Court of Appeals in a criminal case. Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335. Mr. Justice BLACK, who now speaks for the Court, dissented in the Bryan case because he thought Cone controlling. By act of Congress, the discretion now rests with the Court of Appeals to grant a new trial or to direct a verdict according to law on the record already made.
1
'Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Within 10 days after the reception of a verdict, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned such party, within 10 days after the jury has been discharged, may move for judgment in accordance with his motion for a directed verdict. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. * * *'
2
The controlling Pennsylvania statute then was Pa.Laws 1905, No. 198, 12 P.S. § 681. Like Rule 50(b) it provided for a timely motion for judgment notwithstanding the verdict. The binding duty to do this was explained by the Supreme Court of Pennsylvania as follows, in a case relied on by this Court in the Kennedy case:
'To secure the benefit of that act its terms must be complied with; that is, the refusal of the request for binding instructions must be followed by a proper motion made in due time. Pyle v. Finnessy, 275 Pa. 54, 5m, 118 A. 568. Here the record as duly certified discloses no such motion nor any evidence that one was made. True, the question of the absence of such motion was not raised in the lower court, but, being one of jurisdiction, it cannot be ignored. It follows that as the record stands the judgment cannot be sustained.' West v. Manatawny Mutual Fire & Storm Ins. Co., 277 Pa. 102, 104, 120 A. 763, 764.
3
The writer of this opinion and the Chief Justice are not convinced that the Court of Appeals attempted to direct a verdict for the railroad. What the court said was (194 F.2d 197): 'In our opinion the motion for a directed verdict should have been granted. Accordingly the judgment is reversed.' But holding that a directed verdict should have been given cannot be the equivalent of a court's entry of judgment for defendant notwithstanding a jury verdict for plaintiff. For after setting aside a verdict as authorized by Rule 50(b), a trial judge may 'either' enter a judgment contrary to the verdict 'or' order a new trial. The rule thereby requires the exercise of an informed judicial discretion as a condition precedent to a choice between these two alternatives. Cone v. West Virginia Pulp & Paper Co., supra, 330 U.S. at page 215, 67 S.Ct. at page 754. And this discretion must be exercised by the court, not by its clerk. The Court was told during oral argument that it is the practice in the Second Circuit for the clerk to include in his mandate a direction to the district court to have a judgment entered in favor of a party notwithstanding the verdict where the court reverses a district court's refusal to direct a verdict. A rule of practice of this kind under which a court clerk's mandate would automatically direct entry of a judgment for defendant after court reversal of a plaintiff's judgment could not possibly be the result of the kind of judicial discretion directed by Rule 50(b). We are not willing to attribute such a practice to the Second Circuit. The Second Circuit's Rules of Practice do not prescribe a practice of that kind. See F.C.A.Rules c. 5, pp. 96—103, 16 S.Ct.Dig. 143—169, U.S.Dig., Court Rules (L.Ed.), pp. 573—589. Nor do the rules of any other circuit. See F.C.A.Rules cc. 4—13, pp. 84—194, 16 S.Ct.Dig. 107—523, U.S.Dig., Court Rules (L.Ed.), pp. 545—827. No case has been found that indicates such a practice by the Second of any other Circuit. Since adoption of Rule 50(b) in 1938, courts of appeals wishing to enter or direct judgment have said so in clear, simple and mandatory language. As to the Second Circuit, see e.g., Venides v. United Greek Shipowners Corp., 168 F.2d 681; Brennan v. Baltimore & O.R. Co., 115 F.2d 555; Williams v. New Jersey-New York Transit Co., 113 F.2d 649; Conway v. O'Brien, 111 F.2d 611. The Fifth Circuit emphatically pointed out that mere reversal and remand for proceedings consistent with the opinion did not authorize a trial court to enter judgment notwithstanding the verdict; entry of such a judgment was only to be granted as of discretion and after a hearing. Fleniken v. Great American Indemnity Co., 142 F.2d 938; see also In re Mutual Life Ins. Co. of New York, 188 F.2d 424, 425—426.
1
'(b) Reservation of Decision on Motion. Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Within 10 days after the reception of a verdict, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned such party, within 10 days after the jury has been discharged, may move for judgment in accordance with his motion for a directed verdict. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial.'
2
The post-verdict motions in Cone and Globe (there was none in Fountain) specifically prayed for a new trial, and the grounds they recited went wholly to the issue of whether or not a new trial would be proper. The Cone motion relied on newly discovered evidence. Moreover, it was much too late to pray for judgment n.o.v. under Rule 50(b). In Globe the motion claimed error in rulings on evidence and in taking the case from the jury. The motion in our case, timely under Rule 50(b), was 'to set aside the verdict' on grounds which supported both judgment n.o.v. and the grant of a new trial. Having heard argument and requested briefs and the trial transcript, the judge held that the evidence permitted recovery. It could not do so, of course, if it were insufficient in law. Nor should the fact be forgotten that the judge was dealing with arguments which had been presented to him before on a motion for a directed verdict, as to which he had reserved decision. Motions for directed verdict had been made by defendants in Cone and Globe as well, but they had been expressly denied before the verdict.
3
The specifications which I do not quote do not add materially to the motion for judgment n.o.v. in the Montgomery Ward case.
| 89
|
344 U.S. 82
73 S.Ct. 122
97 L.Ed. 111
BAUMET et al.v.UNITED STATES et al.
No. 39.
Argued Oct. 15, 1952.
Decided Nov. 17, 1952.
Rehearing Denied Jan. 5, 1953.
See 344 U.S. 916, 73 S.Ct. 332.
Mr. Louis A. D'Agosto, New York City, for petitioner.
Mr. Morton Liftin, Washington, D.C., for the United States.
Mr. Thomas Thacher, New York City, for respondent Peters.
Mr. Justice CLARK delivered the opinion of the Court.
1
Based on conflicting claims to the proceeds of a National Service Life Insurance policy, this is a companion case to United States v. Henning, 344 U.S. 66, 73 S.Ct. 114.
2
The controversy is bottomed on the following facts: At the time of the insured serviceman's death in 1942, his policy designated John J. Peters, his uncle, as sole beneficiary. Challenging the uncle's standing as a permissible beneficiary under the statute, William Baumet, the insured's natural father, instituted an action to claim the proceeds.1 Before that action came to trial, John J. Peters died.2 After a subsequent trial of the cause, the District Court found that John J. Peters and his wife Julie Peters had stood in loco parentis to the insured from 1938 until his death, and that the natural father's contemporaneous conduct had amounted to an abandonment of his son.3 Concluding that John J. Peters, as a person in loco parentis, was a validly designated beneciary under the Act,4 it dismissed Baumet's complaint. Accordingly, the court awarded the installments which had matured during John J. Peters' lifetime to Julie Peters as his personal representative, and the installments thereafter maturing to Julie individually as a person in loco parentis who 'last bore' the parental relationship to the insured.5 The Court of Appeals affirmed.6 It agreed that 'after 1938 his father never saw him, manifested no interest in his career and contributed nothing toward his support'; in fact, there was 'a permanent estrangement between them.'7 And it approved the District Court's allocation of the policy's proceeds. In so holding, the Court of Appeals assumed that estates of deceased beneficiaries were proper takers, and that the foster parents had long supplanted the natural father in the parental relationship to the insured. In any event, the court thought, 'the insured can have but one maternal parent and one paternal parent.'8 We granted certiorari, 343 U.S. 925, 72 S.Ct. 764.
3
For the reasons detailed in United States v. Henning, supra, we hold that estates of deceased beneficiaries may not take proceeds under the Act. The award to John J. Peters' personal representative must therefore fall. In regard to the natural father's claim, the District Court's findings sharply reveal that William Baumet long before his son's death had 'abandoned his son' and ceased to be a parent in truth and fact. He may not now retrieve the discarded paternal robes to lay claim to the policy proceeds; to rule otherwise would foil the plain intent of the 1942 amendments. Since the foster parents, not he, 'last bore' the parental relationship, he cannot qualify as a taker by devolution under § 602(h)(3)(C) of the Act. For that reason we hold that the foster mother, Julie Peters, as the sole survivor of those who 'last bore' the parental relationship, in her own right must take all accrued policy proceeds.
4
Reversed.
5
Mr. Justice FRANKFURTER and Mr. Justice JACKSON, for the reasons stated in the dissenting opinion of Mr. Justice JACKSON in United States v. Henning, 344 U.S. 66, 73 S.Ct. 114, dissent from the Court's refusal to permit the deceased beneficiary's estate to share in the proceeds.
6
Mr. Justice DOUGLAS, dissenting in part.
7
I think William Baumet and Julie Peters should share the accrued policy proceeds pari passu. I believe that the natural father as well as the foster mother 'last bore' the parental relationship to the insured. No law, no dictionary, no form of words can change that biological fact. The natural father, as well as the natural mother, remains a parent no matter how estranged parent and child may become. A stranger may by conduct become a foster parent; but no conduct can transmute a natural parent into a stranger.
1
The insured's natural mother died in 1936, and no claim is raised on her behalf. However, the infant half-brothers and half-sisters of the insured by their guardian ad litem filed a claim asserting that they followed their father William Baumet on the priority ladder of § 602(h)(3), 38 U.S.C. § 802(h)(3), 38 U.S.C.A. § 802(h)(3). But their standing under § 602(h)(3)(D) is conditioned on the absence of takers qualifying under § 602(h)(3)(C). Since we find such a taker, their claims need not be considered here.
2
Julie Peters, as John's executrix, moved for substitution in his stead. The District Court denied the motion, on the ground that John J. Peters' rights were extinguished by his death. S.D.N.Y.1948, 81 F.Supp. 1012. The Court of Appeals reversed, holding that accrued installments passed to a deceased beneficiary's estate. 2 Cir., 1949, 177 F.2d 806, certiorari denied, 1950, 339 U.S. 923, 70 S.Ct. 611, 94 L.Ed. 1346. A subsequent trial followed.
3
The District Court's unreported findings and opinion are reprinted at pp. 10 to 24 of the Appendix to the Brief for the United States.
4
§§ 601(f), 602(g), 38 U.S.C. §§ 801(f), 802(g), 38 U.S.C.A. §§ 801(f), 802(g).
5
§ 602(h)(3)(C), 38 U.S.C. § 802(h)(3)(C), 38 U.S.C.A. § 802(h)(3)(C).
6
Baumet v. United States, 2 Cir., 1951, 191 F.2d 194.
7
191 F.2d at page 195—196.
8
191 F.2d 194, 197.
| 89
|
344 U.S. 66
73 S.Ct. 114
97 L.Ed. 101
UNITED STATESv.HENNING et al.
No. 10.
Reargued Oct. 14, 1952.
Decided Nov. 17, 1952.
Rehearing Denied Dec. 22, 1952.
See 344 U.S. 910, 73 S.Ct. 327.
Mr. Morton Liftin, Washington, D.C., for petitioner.
Mr. Richard H. Lee, Boston, Mass., for respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
Conflicting claims to the proceeds of a policy of National Service Life Insurance frame the controversy before us. Disposition of the cause depends on our interpretation of the National Service Life Insurance Act of 1940, as amended, 38 U.S.C. § 801 et seq., 38 U.S.C.A. § 801 et seq., which in pertinent part1 provides:
2
s 602(g). 'The insurance shall be payable only to a widow, widower, child * * *, parent, brother or sister of the insured. The insured shall have the right to designate the beneficiary or beneficiaries of the insurance, but only within the classes herein provided * * *.' s 601(f). 'The terms 'parent', 'father', and 'mother' include a father, mother, father through adoption, mother through adoption (and) persons who have stood in loco parentis to a member of the military or naval forces at any time prior to entry into active service for a period of not less than one year * * *.'
3
s 602(i). 'If no beneficiary is designated by the insured or if the designated beneficiary does not survive the insured, the beneficiary shall be determined in accordance with the order specified in subsection (h)(3) of this section and the insurance shall be payable in equal monthly installments in accordance with subsection (h) * * *. The right of any beneficiary to payment of any installments shall be conditioned upon his or her being alive to receive such payments. No person shall have a vested right to any installment or installments of any such insurance and any installments not paid to a beneficiary during such beneficiary's lifetime shall be paid to the beneficiary or beneficiaries within the permitted class next entitled to priority, as provided in subsection (h) * * *.'
4
s 602(h)(3). 'Any installments certain of insurance remaining unpaid at the death of any beneficiary shall be paid in equal monthly installments in an amount equal to the monthly installments paid to the first beneficiary, to the person or persons then in being within the classes hereinafter specified and in the order named, unless designated by the insured in a different order—
5
'(C) if no widow, widower, or child, to the parent or parents of the insured who last bore that relationship, if living, in equal shares; * * *.' s 602(j). 'No installments of such insurance shall be paid to the heirs or legal representatives as such of the insured or of any beneficiary, and in the event that no person within the permitted class survives to receive the insurance or any part thereof no payment of the unpaid installments shall be made * * *.'
6
The material facts are not disputed. Eugene C. Henning, a Naval Reservist insured under a $10,000 term policy of National Service Life Insurance which named his father as sole beneficiary,2 died on July 4, 1945, in his country's service. Otto F. Henning, the father, died five months later, without having received any part of the policy's proceeds. Bessie, his second wife and the insured's stepmother, and Clara Belle, his former wife and the insured's natural mother, survived. Both survivors subsequently filed claims to the proceeds of the serviceman's policy. On June 30, 1949, during the pendency of an interpleader action for a judicial determination of the proper taker, Bessie died, leaving the natural mother as sole surviving claimant. The Government thereupon asserted that Bessie had last borne the parental relationship to the insured; that consequently Clara Belle could not come within the statutory class of devolutionary takers; and that, in the absence of cognizable claims to the proceeds, they escheat to the National Service Life Insurance Fund.
7
The District Court's judgment, however, divided the proceeds, payable in installments, among three parties.3 The court read the statute as imposing no bar to the award of matured but unpaid installments to the estates of deceased beneficiaries. It therefore awarded to the father's estate the installments which had matured during his lifetime but remained unpaid. And, finding that Bessie, the stepmother, had stood in loco parentis to the insured for at least one year prior to his entry into active service, it concluded that both she and Clara Belle, the natural mother, were parents who 'last bore that relationship' and thus qualified to take the remaining proceeds by devolution under § 602(h)(3)(C) of the Act. The installments which had matured during the stepmother's lifetime were shared equally between her estate and Clara Belle; installments thereafter maturing were awarded to the latter alone.
8
The Court of Appeals agreed.4 Conceding that the literal wording of the statute went 'a long way' toward sustaining the Government's opposing contentions, the court, fearful of unfortunate consequences that might flow from strict adherence to the text of the Act, nevertheless ruled that estates of deceased beneficiaries might take. And, noting its disagreement with the Second Circuit's ruling in Baumet v. United States,5 it further held that one in loco parentis who qualified as a beneficiary under § 602(h)(3)(C) of the Act did not necessarily exclude from participation in policy proceeds a natural parent of the same sex who also 'last bore' the parental relationship to the insured.
9
We granted certiorari to settle problems important in the administration of the National Service Life Insurance Act and to resolve conflicting statutory interpretations by the Courts of Appeals. 342 U.S. 917, 72 S.Ct. 365, 96 L.Ed. 686.
10
Congress through war risk insurance legislation has long sought to protect from financial hardship the surviving families of those who had served under the nation's flag. Comprehensive insurance programs enacted in 1917, 1940, and 1951 reflect this consistent legislative concern in times of crisis. Since public funds were to meet a large part of the programs' cost,6 the statutes closely circumscribed the class of permissible takers to preclude those not the object of congressional concern from draining the treasury when hazards of war service multiplied policy maturities. The War Risk Insurance Act of 1917 enumerated only the serviceman's spouse and immediate blood relatives as permissible beneficiaries of policy proceeds;7 a beneficiary's interest was extinguished by death.8 The National Service Life Insurance Act of 1940, again constricting the class of permissible takers,9 restates the legislative purpose of the prior Act. In the Servicemen's Indemnity Act of 1951 the previous restrictions once more appear, reiterated in a flat proviso: 'no payment shall be made to the estate of any deceased person.'10 Accenting these wartime limitations is the liberalizing legislation by which Congress after cessation of hostilities in World Wars I and II placed its insurance programs on more nearly a commercial basis. Amendments to the War Risk Insurance Act in 1919 expanded the permitted beneficiary class to include more distant relatives of the insured, and, significantly, provided that installments payable but unpaid upon a beneficiary's death might go to his estate.11 This broadening legislation was substantially reenacted in the World War Veterans' Act of 1924.12 And after World War II, Congress in 1946 once more liberalized the benefits of the National Service Life Insurance Act. As to policies maturing after August 1946 it removed the restrictions on the insured's choice of beneficiary, and in certain instances permitted the payment of installment proceeds to deceased beneficiaries' estates.13 From this course of legislation an unmistakable pattern of congressional policy emerges: Statutes enacted in time of war crisis narrow the range of beneficiaries; post-war legislation broadens it.14
11
Section 602 of the N.S.L.I. Act of 1940, governing the distribution of the policy proceeds here in controversy, must take meaning from its historical setting. Cf. United States v. Zazove, 1948, 334 U.S. 602, 68 S.Ct. 1284, 92 L.Ed. 1601. Subsection (i) conditions the right of a beneficiary to the payment of any installments 'upon his or her being alive to receive such payments'; it adds that 'No person shall have a vested right to any installment * * * and any installments not paid to a beneficiary during such beneficiary's lifetime shall be paid to the beneficiary or beneficiaries * * * next entitled to priority * * *.' And subsection (j), so as to disclaim any possible analogy to prior peacetime legislation which at one time had been construed to confer such rights,15 emphasizes that 'No installments of such insurance shall be paid to the heirs or legal representatives as such * * * of any beneficiary.' On the contrary, the subsection directs 'in the event that no person within the permitted class survives to receive the insurance or any part thereof no payment of the unpaid installments shall be made'.
12
In the face of this clear statutory language we are nevertheless urged to distinguish installments neither accrued nor paid from accrued installments that an intended beneficiary for some reason has not received. Whereas the former concededly may not pass to the estate of a deceased beneficiary, it is argued that the latter may. For to hold otherwise, the argument runs, might result in 'amazing consequences'; the government, for example, by simply withholding payments until one beneficiary died might unjustly enrich another in a lower priority, or, if none survived, favor the public purse; moreover, a low-priority beneficiary by litigating a specious claim might profitably suspend payment until the higher-priority takers died.
13
We reject the conclusion and its premises. The asserted distinction assumes that when Congress in § 602(i) conditioned payment to beneficiaries on their 'being alive to receive such payments' 'it meant something else; that exempted, without words or other indication, installments accrued but not yet paid. But to read such language into subsection (i) strips it of significance; if limited in application to unmatured installments the strictures of that subsection would be mere surplusage, forbidding what the priority ladder of § 602(h)(3) in any event could not logically permit. We cannot so nullify the clear import of subsection (i). In drafting the 1940 statute, Congress must have been fully cognizant of insurance legislation of the prior war. The 1917 War Risk Insurance Act was well understood to prohibit payment of accrued installments to the estates of beneficiaries who did not live to take their intended shares;16 the very contention made here today was then examined and rejected.17 No peacetime amendments, as those which in 1919 and 1924 specifically altered the deliberate wartime result, can aid the contention presented today.18 The conclusion is irresistible that when in 1940 the law conditioned payments on the beneficiary's being alive to receive them, Congress said what it meant and meant what it said. Were more needed, the consistent course of administrative practice under the Acts of 1917 and 1940 applied the statutes to bar payments to deceased beneficiaries' estates;19 that factor, too, must be accorded weight. United States v. Zazove, supra; United States v. Citizens Loan & Trust Co., 1942, 316 U.S. 209, 62 S.Ct. 1026, 86 L.Ed. 1387; United States v. Madigan, 1937, 300 U.S. 500, 57 S.Ct. 566, 81 L.Ed. 767. We are not unmindful of the fact that unanticipated delay in the payment of policy proceeds may withhold from a beneficiary the funds that Congress intended him to get; seven years and three deaths have not yet brought this litigation to an end. But we cannot apportion the blame for this cruel delay. And we may surely not speculate that the officials entrusted with the administration of the Act would attempt to enrich other beneficiaries or the treasury itself by a sardonic waiting game.
14
We conclude that in this crisis legislation Congress, fully aware of the sometimes inevitable delays in payment, preferred the occasionally harsh result to a course of action which would permit funds intended for living members of the narrow statutory class of permissible takers to seep down to an enlarged class of sub-beneficiaries created not by the Act itself but by intended beneficiaries' testamentary plans. Courts may not flout so unmistakable a legislative purpose, expressed in so clear a congressional command. United States v. Citizens Loan & Trust Co., supra; Wissner v. Wissner, 1950, 338 U.S. 655, 70 S.Ct. 393, 94 L.Ed. 424. We hold that the award of accrued installments to the estates of deceased beneficiaries cannot stand.
15
There remains the controversy between the natural mother and the United States. The Government contends that because Bessie, the stepmother, had stood in loco parentis to the insured at the time of his death, she was the material parent 'who last bore that relationship' within the meaning of § 602(h)(3)(C); consequently Clara Belle, the natural mother, despite a District Court finding that she, too, 'last bore that relationship,' was displaced and forever lost any right to take by devolution under the Act. In essence, the argument is that no more than one parent of each sex may contemporaneously meet the test imposed by the Act; the 'last' parent takes all, to the exclusion of others. And since the 'last' parent is now dead, no one may take.
16
We cannot agree. While the contention has the merit of simplicity, simplicity cannot supplant statutory interpretation. Section 602(h)(3)(C), too, has a historical setting. The National Service Life Insurance Act as enacted in 1940 confined the class of devolutionary takers to the spouse and blood relatives of the insured.20 So written the legislation proved unsatisfactory in practice. As construed, that provision required payment of proceeds to an insured's natural parents though they had abandoned him to be raised and supported wholly by foster parents, the latter being excluded from participation by the Act.21 Upon recommendation of the Veterans' Administrator, Congress in 1942 amended the Act to foreclose that result. Persons who stood in loco parentis to the insured for at least one year prior to his entry into active military service were included within the Act's definition of 'parent.' And they qualified as takers by devolution if they 'last bore that relationship' to the insured,22 an essential statutory condition to preclude the parceling out of proceeds among a series of transient hosts and to assure full benefits to those most likely to merit the insured's financial support. The thrust of the amendment thus was directed at the inclusion of worthy foster parents, not the exclusion of natural parents however deserving.
17
It may well be that ordinarily a foster relationship does not begin until natural parental ties, realistically viewed, are severed; if so, the foster parent bears the parental relationship when the natural parent has ceased to be such in truth and fact. And in that case, the clear intent of the 1942 amendments would demand the exclusion of the natural parent from participation in the proceeds. But since that determination, based on realties, not status, necessarily must depend on the facts of a particular case, it is peculiarly within the competence of others who are closer to the living facts. Here the District Court found that the parental relationship continued until the insured's death, and the Court of Appeals observed that 'there is no finding or evidence of any estrangement, to say nothing of abandonment, or even any lack of parental feeling, between (the insured) and his mother, Clara Belle.'23 Unable to freeze into formula the subtle family relations that may constitute a genuine parental bond, we must accept what the courts below deemed a continuing parental relationship between mother and son.
18
Since we hold that Clara Belle Henning, the insured's natural mother, is a surviving beneficiary entitled to take by devolution under § 602(h)(3)(C), the Government may of course not invoke the provisions of § 602(j) to withhold, for the benefit of the National Service Life Insurance Fund, payment of the installments accrued from the date of the insured's death. It equally follows that the method of distribution of installments to Clara Belle, as 'the beneficiary to whom payment is first made', must depend on her age at the date of policy maturity, subject to her election of an optional settlement as provided by § 602(h)(1) and (2) and applicable administrative regulations under the Act.24
19
Reversed.
20
Mr. Justice BURTON, with whom The CHIEF JUSTICE joins, concurring in part and dissenting in part.
21
I agree with the opinion and the judgment of the Court insofar as it holds that no installments may be paid to the legal representatives of the estates of the respective deceased beneficiaries. However, I feel obliged to conclude that, within the meaning of the Act, only the natural father and the foster mother of the insured last bore to him, at the time of his death, the relationship of parents. That last relationship was then to the exclusion of everyone, even to the exclusion of his natural mother. Consequently, upon the death of those two persons who last bore the relationship of parent to the insured, there remained no person entitled under the terms of the Act to receive any of the proceeds as a contingent beneficiary. Accordingly, the proceeds should be withheld for the benefit of the National Service Life Insurance Fund.
22
Mr. Justice JACKSON, whom Mr. Justice FRANKFURTER joins, dissenting.
23
Perhaps a halfhearted dissent, like an extemporaneous speech, is only worth the paper it is written upon. We do no more than point out that we would prefer a more benign construction of these complex statutes which would be equally reasonable.
24
The problem is of that recurring sort well described by Judge Learned Hand as follows:
25
'The issue involves the baffling question which comes up so often in the interpretation of all kinds of writings; how far is it proper to read the words out of their literal meaning in order to realize their overriding purpose? It is idle to add to the acres of paper and streams of ink that have been devoted to the discussion. When we ask what Congress 'intended,' usually there can be no answer, if what we mean is what any person or group of persons actually had in mind. Flinch as we may, what we do, and must do, is to project ourselves, as best we can, into the position of those who uttered the words, and to impute to them how they would have dealt with the concrete occasion. He who supposes that he can be certain of the result, is the least fitted for the attempt.' United States v. Klinger, 2 Cir., 199 F.2d 645, 648.
26
The literal language of Congress in 38 U.S.C. § 802(i), 38 U.S.C.A. § 802(i), we would read with emphasis as follows: 'The right of any beneficiary to payment of any installments shall be conditioned upon his or her being alive to receive such payments.' This, on our reading, says that a beneficiary's claim to an installment is matured and his right is perfected when the installment becomes due and he is alive to receive it whether or not he then actually reduces it to possession. Under the Court's construction, no 'right' to an installment comes into existence until the claimant has actually received payment. On that event, we would think he would cease to have the 'right.' It is not clear what the Court would do about the case where a check was sent to pay the claim and the claimant died while it was in the mails or after he had received the check but before it was actually presented for payment. But to us this language means that installments accrue to a beneficiary when they fall due during his lifetime and thereupon become his of right.
27
We do not read § 802(j) as taking away what § 802(i) grants. It may be read with this emphasis: 'No installments of such insurance shall be paid to the heirs or legal representatives as such of the insured or of any beneficiary * * *.' Just what 'as such' adds or subtracts may be debated, but to us the phrase, if it is to have any significance in this context, means that payments cannot accrue to an administrator or executor, because a personal representative as such cannot become a beneficiary. But it does not mean that the personal representative cannot collect installments which had become the 'right' of decedent during his lifetime.
28
This construction would avoid what the Court admits is a harsh and capricious result. It seems strange, in dealing with a bereaved beneficiary, if our Government makes a promise to the ear to be broken to the hope. Under the Court's view, though the beneficiary is alive to receive the payment and therefore has the statutory 'right' to it, any event that delays its actual payment may cancel his 'right.' By an adverse claim, however fictitious, or a litigation, however frivolous, a junior beneficiary may delay payments and gamble on winning them for himself through death of the senior beneficiary. Some period of waiting is inevitable in the settlement of claims in any event, and we all know the tendency of claim papers to shuffle back and forth between Washington desks while time, which means little to the administrative staff, means everything to the claimant. We would not put upon beneficiaries all risks caused by delay and thus make their statutory rights as contingent as lottery tickets. Beneficiaries of this class are often dependents, left in urgent need by death of the insured. When red tape or litigiousness delays the promised income, should not the beneficiary while waiting to hear from Washington have a firm right to accrued installments on which he or his estate could depend? The reasoning that would deny the asset to the estate may also deny the needy beneficiary credit.
29
We do not think that the Court's admittedly harsh result is the fairest permissible interpretation of this statute. We would allow the estate of a beneficiary to recover payments that fall due while the beneficiary is alive to receive them. On this point alone do we dissent.
1
In 1946, the Act was amended prospectively in several material respects. 60 Stat. 781 et seq. Since the policy before us matured in 1945, the 1946 amendments do not govern the distribution of the proceeds here in issue.
2
The insured at one time had designated his wife as beneficiary and his father as contingent beneficiary. Subsequently he properly changed this designation and named his father as sole beneficiary. The marriage was dissolved prior to the insured's death. The earlier designation is thus not material here.
3
D.C.D.Mass.1950, 93 F.Supp. 380.
4
1 Cir., 1951, 191 F.2d 588. The Court of Appeals reversed and remanded for proper computation of the installments which it found due the various parties. In view of our disposition of the case we are not now concerned with that part of its holding.
5
1951, 191 F.2d 194, certiorari granted, 343 U.S. 925, 72 S.Ct. 764, decided this day; 73 S.Ct. 122.
6
E.g., § 403, W.R.I.A. of 1917, 40 Stat. 410; § 602 et seq., N.S.L.I. Act of 1940, 38 U.S.C. § 802 et seq., 38 U.S.C.A. § 802 et seq., see United States v. Zazove, 1948, 334 U.S. 602, 616, 68 S.Ct. 1284, 1290, 92 L.Ed. 1601; Servicemen's Indemnity Act of 1951, 38 U.S.C.(Supp. V) § 851 et seq., 38 U.S.C.A. § 851 et seq.; S.Rep.No.91, 82d Cong., 1st Sess.; H.Rep.No.6, 82d Cong., 1st Sess.
7
§ 402, 40 Stat. 409.
8
Cassarello v. United States, D.C., 271 F. 486; Salzer v. United States, D.C., 300 F. 764.
9
§ 602(g), 38 U.S.C. § 802(g), 38 U.S.C.A. § 802(g).
10
§ 3, 38 U.S.C.(Supp. V) § 852, 38 U.S.C.A. § 852.
11
§§ 4, 13, 19, 41 Stat. 371, 375, 376.
12
§§ 3, 26, 43 Stat. 607, 614, 38 U.S.C. §§ 424, 451, 38 U.S.C.A. §§ 424, 451.
13
§§ 4, 9, 60 Stat. 782, 785, 38 U.S.C. §§ 802(g, u), 38 U.S.C.A. § 802(g, u).
14
As to the 1946 amendments, see testimony of Mr. Harold W. Breining, Assistant Administrator for Insurance, Veterans' Administration, Hearings before the Subcommittee on Insurance of the Committee on World War Veterans' Legislation, House of Representatives, 79th Cong., 2d Sess., on H.R. 5772 and H.R. 5773 (p. 1):
'The fundamental reasons for liberalization are that during the war the bulk of losses all came from the National Treasury. Through this method the Government assumed the losses due to the extra hazards of military and naval services. Since the Government during the war bore the major part of the losses it was not felt that the Government would want to pay, indirectly through this channel, large sums of money to persons who might be beneficiaries only because of some speculation, or because the insured might wish to give it to them as distinguished from persons who were likely to be dependent or to whom the insured might owe some semblance of a moral obligation. These restrictions originally were placed in the law with the clear intent that they would be eliminated when the period of emergency was over.'
For Congressional attitudes in enacting the W.R.I.A. of 1917, see, e.g., 55 Cong.Rec. 6761, 7690, and H.R.Rep.No. 130, Pt. 3, p. 5, 65th Cong., 1st Sess. The legislative history of the 1940 Act contains little expression of congressional intent. The Act was presented while a controversial revenue measure was under consideration. The Committee reports accompanying the revenue bill of which the N.S.L.I. Act became part contain no reference to the insurance legislation. A Conference Committee Report devoted less than a page to the Insurance Act. See H.R.Rep.No.2894, S.Rep.No.2114, H.R.Rep.No.3002, all of the 76th Cong., 3d Sess.
15
McCullough v. Smith, 1934, 293 U.S. 228, 55 S.Ct. 157, 79 L.Ed. 297; cf. United States v. Citizens Loan & Trust Co., 1942, 316 U.S. 209, 62 S.Ct. 1026, 86 L.Ed. 1387; both cases involving the 1925 amendments to the World War Veterans' Act. 43 Stat. 1310, 38 U.S.C. § 514, 38 U.S.C.A. § 514.
16
Treasury Dept., Bureau of War Risk Insurance, Division of Military and Naval Insurance, Bulletin No. 1, p. 4 (1917); Cassarello v. United States, D.C.1919, 271 F. 486.
17
24 Comp.Dec. 733 (1918); Cf. American National Bank & Trust Co. v. United States, 1943, 77 U.S.App.D.C. 243, 134 F.2d 674; United States v. Lee, 6 Cir., 1939, 101 F.2d 472, 121 A.L.R. 432, which interpreted 38 U.S.C. § 516, 38 U.S.C.A. § 516, providing for reinstatement of lapsed World War I policies, as forbidding the payment of installments to the estates of deceased beneficiaries. These holdings turned on the section's enumeration of a restricted class of permissible takers; estates of deceased persons were held not to fall within that class. The pertinent terms of that enactment are almost identical with portions of §§ 602(g) and (h) of the National Service Life Insurance Act we must construe today.
18
Since this policy matured in 1945, we are not here concerned with whatever effects the 1946 amendments to the National Service Life Insurance Act might have on this or similar cases.
19
See 24 Comp.Dec. 733 (1918); Bulletin, note 16, supra; Communication to the Solicitor General of the United States from the Solicitor, Veterans' Administration, dated March 12, 1952, reprinted as Appendix B, Brief for the United States.
20
§§ 602(g) and (h)(3)(C), 54 Stat. 1010. The insured, however, was permitted to designate persons in loco parentis as beneficiaries.
21
S.Rep.No.1430, 77th Cong., 2d Sess., p. 2; H.R.Rep.No.2312, 77th Cong.2d Sess., p. 4. Cf. S.Rep.No.91, 82d Cong., 1st Sess., p. 12; H.R.Rep.No. 6, 82d Cong., 1st Sess., p. 14.
22
§§ 7 to 9, 56 Stat. 659, 38 U.S.C. §§ 801(f), 802(g), and (h)(3)(C), 38 U.S.C.A. §§ 801(f), 802(g), (h)(3)(C). Cf. § 3 of the Servicemen's Indemnity Act of 1951, 38 U.S.C. (Supp. V) § 852, 38 U.S.C.A. § 852.
23
191 F.2d at page 593.
24
38 U.S.C. § 802(h)(1) and (2), 38 U.S.C.A. § 802(h)(1, 2); 38 CFR (1944 Supp.) § 10.3475 et seq., applicable to this policy which matured in 1945.
| 89
|
344 U.S. 86
73 S.Ct. 139
97 L.Ed. 114
SWEENEY, Sheriffv.WOODALL et al.
No. 100.
Decided Nov. 17, 1952.
Rehearing Denied Jan. 5, 1953.
See 344 U.S. 916, 73 S.Ct. 332.
Mr. Frank T. Cullitan and Gertrude M. Bauer, Cleveland, Ohio, for petitioner.
Mr. Frank C. Lyons, Cleveland, Ohio, for respondent.
PER CURIAM.
1
The respondent is a fugitive from a prison in Alabama. The Governor of that State instituted proceedings for his return, and respondent was arrested in Ohio. Petitioner, the Sheriff of Cuyahoga County, Ohio, now holds respondent for delivery to the authorities of Alabama.
2
In an attempt to prevent his rendition to Alabama, respondent applied to the Court of Common Pleas of Cuyahoga County for a writ of habeas corpus. He alleged that during his confinement in Alabama he had been brutally mistreated, that he would be subjected to such mistreatment and worse if returned. Invoking the Eighth and Fourteenth Amendments, he asserted that his past confinement had amounted to cruel and unusual punishment, that any future confinement administered by Alabama would similarly be in violation of rights secured to him under the Federal Constitution. Respondent asked that petitioner's efforts to return him to the custody of Alabama be halted and that he be immediately released.
3
Refusing to hear this claim on its merits, the Court of Common Pleas denied respondent's application. This judgment was affirmed by the Ohio Court of Appeals for the Eighth District. In re Woodall, 88 Ohio App. 202, 89 N.E.2d 493. An appeal to the State's Supreme Court was dismissed. Woodall v. Sweeney, 152 Ohio St. 368, 89 N.E.2d 494. This Court denied a petition for certiorari. Woodall v. Sweeney, 339 U.S. 945, 70 S.Ct. 790, 94 L.Ed. 1360.
4
Respondent then applied to the United States District Court for the Northern District of Ohio, seeking his release upon the same ground theretofore urged in the Ohio courts. The District Court dismissed his petition for a writ of habeas corpus without hearing evidence. But the Court of Appeals for the Sixth Circuit reversed, without opinion, remanding the cause to the District Court for a hearing on the merits of the constitutional claim. 194 F.2d 542. Petitioner has now applied to this Court for a writ of certiorari.
5
Recently, in Dye v. Johnson, 1949, 338 U.S. 864, 70 S.Ct. 146, 94 L.Ed. 530, this Court considered a petition for certiorari in a similar case. The Court of Appeals for the Third Circuit had sustained an application for habeas corpus by a fugitive prisoner from Georgia who alleged, as respondent does now, that his confinement in the demanding state amounted to cruel and unusual punishment in violation of his constitutional rights. Presented with a petition for certiorari to review this decision, we reversed, summarily, citing Ex parte Hawk, 1944, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572. Shortly after our decision in the Dye case, the Court of Appeals for the District of Columbia Circuit affirmed a District Court's dismissal of a similar petition for habeas corpus from still another fugitive, holding that the federal courts in the asylum should not entertain such applications. Johnson v. Mathews, 1950, 86 U.S.App.D.C. 376, 182 F.2d 677.1
6
In the present case, as in the others, a fugitive from justice has asked the federal court in his asylum to pass upon the constitutionality of his incarceration in the demanding state, although the demanding state is not a party before the federal court and although he has made no attempt to raise such a question in the demanding state. The question is whether, under these circumstances, the district court should entertain the fugitive's application on its merits.
7
Respondent makes no showing that relief is unavailable to him in the courts of Alabama. Had he never eluded the custody of his former jailers he certainly would be entitled to no privilege permitting him to attack Alabama's penal process by an action brought outside the territorial confines of Alabama in a forum where there would be no one to appear and answer for that State. Indeed, as a prisoner of Alabama, under the provisions of 28 U.S.C. § 2254, 28 U.S.C.A. § 2254,2 and under the doctrine of Ex parte Hawk, supra, he would have been required to exhaust all available remedies in the state courts before making any application to the federal courts sitting in Alabama.
8
By resort to a form of 'self help,' respondent has changed his status from that of a prisoner of Alabama to that of a fugitive from Alabama. But this should not affect the authority of the Alabama courts to determine the validity of his imprisonment in Alabama. The scheme of interstate rendition, as set forth in both the Constitution3 and the statutes which Congress has enacted to implement the Constitution,4 contemplates the prompt return of a fugitive from justice as soon as the state from which he fled demands him; these provisions do not contemplate an appearance by Alabama in respondent's asylum to defend against the claimed abuses of its prison system.5 Considerations fundamental to our federal system require that the prisoner test the claimed unconstitutionality of his treatment by Alabama in the courts of that State. Respondent should be required to initiate his suit in the courts of Alabama, where all parties may be heard, where all pertinent testimony will be readily available and where suitable relief, if any is necessary, may be fashioned.
9
The District Court properly dismissed the application for habeas corpus on its face, and the Court of Appeals erred in holding that the applicant was entitled to a hearing in the District Court of Ohio on the merits of his constitutional claim against prison officials of Alabama.
10
Accordingly, the petition for certiorari is granted, and the judgment of the Court of Appeals is reversed. It is so ordered.
11
Petition for certiorari granted, and judgment of Court of Appeals reversed.
12
Mr. Justice FRANKFURTER, concurring.
13
I join in the Court's opinion because I agree that due regard for the relation of the States, one to another, in our federal system and for that of the courts of the United States to those of the States requires that claims even as serious as those here urged first be raised in the courts of the demanding State. Even so, it is appropriate to emphasize that in this case there is no suggestion in the application for habeas corpus that the prisoner would be without opportunity to resort to the courts of Alabama for protection of his constitutional rights upon his return to Alabama. We cannot assume unlawful action of the prison officials which would prevent the petitioner from invoking the aid of the local courts nor readily open the door to such a claim. Compare Cochran v. State of Kansas, 316 U.S. 255, 62 S.Ct. 1068, 86 L.Ed. 1453. Our federal system presupposes confidence that a demanding State will not exploit the action of an asylum State by indulging in outlawed conduct to a returned fugitive from justice.
14
Mr. Justice DOUGLAS, dissenting.
15
The petition presents facts which, if true, make this a shocking case in the annals of our jurisprudence.
16
Respondent, a Negro, was convicted of burglary in Alabama and sentenced to hard labor at a state penitentiary. After six years he escaped and was apprehended in Ohio. Thereafter Alabama undertook to extradite him so that he could be returned to Alabama and serve the balance of his sentence. He thereupon filed this petition for habeas corpus to be released from the custody of petitioner, the Ohio sheriff who presently detains him.
17
He offered to prove that the Alabama jailers have a nine-pound strap with five metal prongs that they use to beat prisoners, that they used this strap against him, that the beatings frequently caused him to lose consciousness and resulted in deep wounds and permanent scars.
18
He offered to prove that he was stripped to his waist and forced to work in the broiling sun all day long without a rest period.
19
He offered to prove that on entrance to the prison he was forced to serve as a 'gal-boy' or female for the homosexuals among the prisoners.
20
Lurid details are offered in support of these main charges. If any of them is true, respondent has been subjected to cruel and unusual punishment in the past and can be expected on his return to have the same awful treatment visited upon him.
21
The Court allows him to be returned to Alabama on the theory that he can apply to the Alabama courts for relief from the torture inflicted on him. That answer would suffice in the ordinary case. For a prisoner caught in the mesh of Alabama law normally would need to rely on Alabama law to extricate him. But if the Allegations of the petition are true, this Negro must suffer torture and mutilation or risk death itself to get relief in Alabama. It is contended that there is no showing that the doors of the Alabama courts are closed to petitioner or that he would have no opportunity to get relief. It is said that we should not assume that unlawful action of prison officials would prevent petitioner from obtaining relief in the Alabama courts. But we deal here not with an academic problem but with allegations which, if proved, show that petitioner has in the past been beaten by guards to the point of death and will, if returned, be subjected to the same treatment. Perhaps those allegations will prove groundless. But if they are supported in evidence, they make the return of this prisoner a return to cruel torture.
22
I am confident that enlightened Alabama judges would make short shrift of sadistic prison guards. But I rebel at the thought that any human being, Negro or white, should be forced to run a gamut of blood and terror in order to get his constitutional rights. That is too great a price to pay for the legal principle that before a state prisoner can get federal relief he must exhaust his state remedies. The enlightened view is indeed the other way. See Johnson v. Dye, 3 Cir., 175 F.2d 250 (which unhappily the Court reversed, 338 U.S. 864, 70 S.Ct. 146, 94 L.Ed. 530; Johnson v. Matthews, 86 U.S.App.D.C. 376, 182 F.2d 677, 684—687; Commonwealth ex rel. Mattox v. Superintendent of County Prison, 152 Pa.Super. 167, 31 A.2d 576.
23
Certainly there can be no solid objection to the use of habeas corpus to test the legality of the treatment of a prisoner who has been lawfully convicted. In Cochran v. State of Kansas, 316 U.S. 255, 258, 62 S.Ct. 1068, 1070, 86 L.Ed. 1453, habeas corpus was used to challenge the legality of the practice of prison officials in denying a convict the opportunity of presenting appeal papers to a higher court. And see In re Bonner, 151 U.S. 242, 14 S.Ct. 323, 38 L.Ed. 149. Such an act of discrimination against a prisoner was a violation of the Equal Protection Clause of the Fourteenth Amendment. The infliction of 'cruel and unusual punishments' against the command of the Eighth Amendment is a violation of the Due Process Clause of the Fourteenth Amendment, whether that clause be construed as incorporating the entire Bill of Rights or only some of its guaranties. See Adamson v. People of State of California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903. Even under the latter and more restricted view, the punishments inflicted here are so shocking as to violate the standards of decency implicit in our system of jurisprudence. Cf. State of Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422.
24
The Court of Appeals should be sustained in its action in giving respondent an opportunity to prove his charges. If they are established, respondent should be discharged from custody and saved the ordeal of enduring torture and risking death in order to protect his constitutional rights.*
1
In other similar cases, the Court of Appeals for the Ninth Circuit, in Ross v. Middlebrooks, 1951, 188 F.2d 308, and the Court of Appeals for the Eighth Circuit, in Davis v. O'Connell, 1950, 185 F.2d 513, have reached a like result. In United States ex rel. Jackson v. Ruthazer, 1950, 181 F.2d 588, 589, the Court of Appeals for the Second Circuit held that a fugitive from Georgia was not entitled to a hearing in the federal courts in his asylum on the ground that the merits had been fully heard in the state courts of the asylum and the fugitive's claim disproved.
2
'An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.
'An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.'
3
U.S.Const., Art. IV, § 2, cl. 2:
'A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.'
4
1 Stat. 302, as amended, 18 U.S.C. § 3281, 18 U.S.C.A. § 3281.
5
Cf. Drew v. Thaw, 1914, 235 U.S. 432, 35 S.Ct. 137, 59 L.Ed. 302.
*
The requirements of 28 U.S.C. § 2241(c), 28 U.S.C.A. § 2241(c), regulating the use of habeas corpus are met since the charges, if proved, would result in a return of respondent to Alabama to a 'custody in violation of the Constitution' of the United States.
| 89
|
344 U.S. 94
73 S.Ct. 143
97 L.Ed. 120
KEDROFF et al.v.ST. NICHOLAS CATHEDRAL OF RUSSIAN ORTHODOX CHURCH IN NORTH AMERICA.
No. 3.
Reargued Oct. 14, 1952.
Decided Nov. 24, 1952.
Mr. Philip Adler, New York City, for appellants.
Mr. Ralph Montgomery Arkush, New York City, for appellee.
Mr. Justice REED delivered the opinion of the Court.
1
The right to the use and occupancy of a church in the city of New York is in dispute.
2
The right to such use is claimed by appellee, a corporation created in 1925 by an act of the Legislature of New York, Laws of New York 1925, c. 463, for the purpose of acquiring a cathedral for the Russian Orthodox Church in North America as a central place of worship and residence of the ruling archbishop 'in accordance with the doctrine, discipline and worship of the Holy Apostolic Catholic Church of Eastern Confession as taught by the holy scriptures, holy tradition, seven ecumenical councils and holy fathers of that church.'
3
The corporate right is sought to be enforced so that the head of the American churches, religiously affiliated with the Russian Orthodox Church, may occupy the Cathedral. At the present time that head is the Metropolitan of All America and Canada, the Archbishop of New York, Leonty, who like his predecessors was elected to his ecclesiastical office by a sobor of the American churches.1
4
That claimed right of the corporation to use and occupancy for the archbishop chosen by the American churches is opposed by appellants who are in possession. Benjamin Fedchenkoff bases his right on an appointment in 1934 by the Supreme Church Authority of the Russian Orthodox Church, to wit, the Patriarch locum tenens of Moscow and all Russia and its Holy Synod, as Archbishop of the Archdiocese of North America and the Aleutian Islands. The other defendant-appellant is a priest of the Russian Orthodox Church, also acknowledging the spiritual and administrative control of the Moscow hierarchy.
5
Determination of the right to use and occupy Saint Nicholas depends upon whether the appointment of Benjamin by the Patriarch or the election of the Archbishop for North America by the convention of the American churches validly selects the ruling hierarch for the American churches. The Court of Appeals of New York, reversing the lower court, determined that the prelate appointed by the Moscow ecclesiastical authorities was not entitled to the Cathedral and directed the entry of a judgment that appellee corporation be reinvested with the possession and administration of the temporalities of St. Nicholas Cathedral. St. Nicholas Cathedral of Russian Orthodox Church in North America v. Kedroff, 302 N.Y. 1, 33, 96 N.E.2d 56, 74. This determination was made on the authority of Article 5—C of the Religious Corporations Law of New York, 302 N.Y. at page 24 et seq., 96 N.E.2d at page 68, against appellants' contention that this New York statute, as construed, violated the Fourteenth Amendment to the Constitution of the United States.
6
Because of the constitutional questions thus generally involved, we noted probable jurisdiction, and, after argument and submission of the case last term, ordered reargument and requested counsel to include a discussion of whether the judgment might be sustained on state grounds. 343 U.S. 972, 72 S.Ct. 1069. Both parties concluded that it could not, and the unequivocal remittitur of the New York Court of Appeals, 302 N.Y. 689, 98 N.E.2d 485, specifically stating the constitutionality of the statute as the necessary ground for decision, compels this view and precludes any doubt as to the propriety of our determination of the constitutional issue on the merits. Grayson v. Harris, 267 U.S. 352, 45 S.Ct. 317, 69 L.Ed. 652; State of Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 58 S.Ct. 443, 82 L.Ed. 685. The case now has been reargued and submitted.
7
Article 5—C was added to the Religious Corporations Law of New York in 1945 and provided both for the incorporation and administration of Russian Orthodox churches. Clarifying amendments were added in 1948. The purpose of the article was to bring all the New York churches, formerly subject to the administrative jurisdiction of the Most Sacred Governing Synod in Moscow or the Patriarch of Moscow, into an administratively autonomous metropolitan district. That district was North American in area, created pursuant to resolutions adopted at a sobor held at Detroit in 1924.2 This declared autonomy was made effective by a further legislative requirement that all the churches formerly administratively subject to the Moscow synod and patriarchate should for the future be governed by the ecclesiastical body and hierarchy of the American metropolitan district.3 The foregoing analysis follows the interpretation of this article by the Court of Appeals of New York, an interpretation binding upon us.4
8
Article 5—C is challenged as invalid under the constitutional prohibition against interference with the exercise of religion.5 The appellants' contention, of course, is based on the theory that the principles of the First Amendment are made applicable to the states by the Fourteenth.6 See Stokes, Church and State in the United States (1950), vol. 1, c. VIII.
9
The Russian Orthodox Church is an autocephalous member of the Eastern Orthodox Greek Catholic Church. It sprang from the Church of Constantinople in the Tenth Century. The schism of 1054 A.D. split the Universal Church into those of the East and the West. Gradually self-government was assumed by the Russian Church until in the Sixteenth Century its autonomy was recognized and a Patriarch of Moscow appeared. Fortescue, Orthodox Eastern Church, c. V. For the next one hundred years the development of the church kept pace with the growth of power of the Czars but it increasingly became a part of the civil government—a state church. Throughout that period it also remained an hierarchical church with a Patriarch at its head, governed by the conventions or sobors called by him. However, from the time of Peter the Great until 1917 no sobor was held. No patriarch ruled or was chosen. During that time the church was governed by a Holy Synod, a group of ecclesiastics with a Chief Procurator representative of the government as a member.
10
Late in the Eighteenth Century the Russian Church entered the missionary field in the Aleutian Islands and Alaska. From there churches spread slowly down the Pacific Coast and later with the Slavic immigration to our eastern cities, particularly to Detroit, Clevelant, Chicago, Pittsburgh and New York. The character of the administrative unit changed with the years as is indicated by the changes in its name. See note 2. In 1904 when a diocese of North America was created its first archbishop, Tikhon, shortly thereafter established himself in his seat at Saint Nicholas Cathedral. His appointment came from the Holy Synod of Russia as did those of his successors in order Platon and Evdokim. Under those appointments the successive archbishops occupied the Cathedral and residence of Saint Nicholas under the administrative authority of the Holy Synod.
11
In 1917 Archbishop Evdokim returned to Russia permanently. Early that year an All Russian Sobor was held, the first since Peter the Great. It occurred during the interlude of political freedom following the fall of the Czar. A patriarch was elected and installed—Tikhon who had been the first American Archbishp. Uncertainties as to the succession to and administration of the American archbishopric made their appearance following this sobor and were largely induced by the almost contemporaneous political disturbances which culminated swiftly in the Bolshevik Revolution of 1917. The Russian Orthodox Church was drawn into this maelstrom. After a few years the Patriarch was imprisoned. There were suggestions of his counter-revolutionary activity. Church power was transferred, partly through a sobor considered by many as non-canonical to a Supreme Church Council. The declared reforms were said to have resulted in a 'Living Church' or sometimes in a 'Renovated Church.' Circumstances and pressures changed. Patriarch Tikhon was released from prison and died in 1925. He named three bishops as locum tenens for the patriarchal throne. It was one of these, Sergius, who in 1933 appointed the appellant Benjamin as Archbishop. The Church was registered as a religious organization under Soviet law in 1927. Thereafter the Russian Church and the Russian State approached if not a reconciliation at least an adjustment which eventuated by 1943 in the election of Sergius, one of the bishops named as locum tenens by Tikhon, to the Patriarchate. The Living or Renovated Church, whether deemed a reformed, a schismatic or a new church, apparently withered away. After Sergius' death a new patriarch of the Russian Orthodox Church, Alexi, was chosen Patriarch in 1945 at Moscow at a sobor recognized by all parties to this litigation as a true sobor held in accordance with the church canons.7
12
The Russian upheaval caused repercussions in the North American diocese. That Diocese at the time of the Soviet Revolution recognized the spiritual and administrative control of Moscow. White Russians, both lay and clerical, found asylum in America from the revolutionary conflicts, strengthening the feeling of abhorrence of the secular attitude of the new Russian Government. The church members already here, immigrants and nativeborn, while habituated to look to Moscow for religious direction, were accustomed to our theory of separation between church and state. The Russian turmoil, the restraints on religious activites and the evolution of a new ecclesiastical hierarchy in the form of the 'Living Church,' deemed noncanonical or schismatic by most churchmen, made very difficult Russian administration of the American diocese. Furthermore, Patriarch Tikhon, on November 20, 1920, issued Decision No. 362 relating to church administration for troublesome times. This granted a large measure of autonomy, when the Russsian ruling authority was unable to function, subject to 'confirmation later to the Central Church Authority when it is reestablished.' Naturally the growing number of American-born members of the Russian Church did not cling to a hierarchy identified with their country of remote origin with the same national feeling that moved their immigrant ancestors. These facts and forces generated in America a separatist movement.
13
That movember brought about the arrangemens at the Detroit Sobor of 1924 for a temporary American administration of the church on account of the disturbances in Russia.8 This was followed by the declarations of autonomy of the successive sobors since that date, a spate of litigation concerning control of the various churches and occupancy of ecclesiastical positions,9 the New York legislation (known as Article 5-C, notes 2 and 3, supra), and this controversy.
14
Delegates from the North American Diocese intended to be represented at an admittedly canonical Sobor of the Russian Orthodox Church held in 1945 at Moscow. They did not arrive in time on account of delays, responsibility for which has not been fixed. The following stipulation appears as to their later actions while at Moscow:
15
'It is stipulated that Bishop Alexi and Father Dzvonchik, representing the local group of American Churches under Bishop Theophilus, appeared before the Patriarch and the members of his Synod in Moscow, presented a written report on the condition of the American Church, with a request for autonomy and a few days later received from the Patriarch the Ukase * * *.' There came to the Russian Church in America this Ukase of the Moscow Patriarchy of February 14 or 16, 1945, covering Moscow's requirements for reunion of the American Orthodox Church with the Russian. It required for reunion that the Russian Church in America hold promptly an 'all American Orthodox Church Sobor'; that it express the decision of the dioceses to reunite with the Russian Mother Church, declare the agreement of the American Orthodox Church to abstain 'from political activities against the U.S.S.R.' and so direct its parishes, and elect a Metropolitan subject to confirmation by the Moscow Patriarchy. The decree said, 'In view of the distance of the American Metropolitan District from the Russian Mother Church * * * the Metropolitan-Exarch * * * may be given some extended powers by the Moscow Patriarchy * * *.'
16
The American congregations speaking through their Cleveland Sobor of 1946 refused the proffered arrangement and resolved in part:
17
'That any administrative recognition of the Synod of the Russian Orthodox Church Abroad is hereby terminated, retaining, however, out spiritual and brotherly relations with all parts of the Russian Orthodox Church abroad * * *.'
18
This ended the efforts to compose the differences between the Mother Church and its American offspring, and this litigation and the enactment of Article 5—C of the Religious Corporations Law of New York followed. We understand the above factual summary corresponds substantially with the factual basis for determination formulated by the Court of Appeals of New York. From those circumstances it seems clear that the Russian Orthodox Church was, until the Russian Revolution, an hierarchical church with unquestioned paramount jurisdiction in the governing body in Russia over the American Metropolitanate. Nothing indicates that either the Sacred Synod or the succeeding Patriarchs relinquished that authority or recognized the autonomy of the American church. The Court of Appeals decision proceeds, we understand, upon the same assumption. 302 N.Y. at pages 5, 23, 24, 96 N.E.2d at pages 57, 68, 69. That court did consider 'whether there exists in Moscow at the present time a true central organization of the Russian Orthodox Church capable of functioning as the head of a free international religious body.' It concluded that this aspect of the controversy had not been sufficiently developed to justify a judgment upon that ground. 302 N.Y. at pages 22—24, 96 N.E.2d at pages 67—69.
19
The Religious Corporations Law.—The New York Court of Appeals depended for its judgment, refusing recognition to Archbishop Benjamin, the appointee of the Moscow Hierarchy of the Russian Orthodox Church, upon Article 5-C of the Religious Corporations Law, quoted and analyzed at notes 2 and 3, supra.10 Certainly a legislature is free to act upon such information as it may have as to the necessity for legislation. But an enactment by a legislature cannot validate action which the Constitution prohibits, and we think that the statute here in question passes the constitutional limits. We conclude that Article 5—C undertook by its terms to transfer the control of the New York churches of the Russian Orthodox religion from the central governing hierarchy of the Russian Orthodox Church, the Patriarch of Moscow and the Holy Synod, to the governing authorities of the Russian Church in America, a church organization limited to the diocese of North America and the Aleutian Islands. This transfer takes place by virtue of the statute. Such a law violates the Fourteenth Amendment. It prohibits in this country the free exercise of religion. Legislation that regulates church administration, the operation of the churches, the appointment of clergy, by requiring conformity to church statutes 'adopted at a general convention (sobor) held in the City of New York on or about or between October fifth to eighth, nineteen hundred thirty-seven, and any amendments thereto,' note 3, supra, prohibits the free exercise of religion. Although this statute requires the New York churches to 'in all other respects conform to, maintain and follow the faith, doctrine, ritual, communion, discipline, canon law, traditions and usages of the Eastern Confession (Eastern Orthodox or Greek Catholic Church),' their conformity is by legislative fiat and subject to legislative will. Should the state assert power to change the statute requirng conformity to ancient faith and doctrine to one establishing a different doctrine, the invalidity would be unmistakable.
20
Although § 5 of the Religious Corporation Law11 had long controlled religious corporations, the Court of Appeals held that its rule was not based on any constitutional requirement or prohibition.12 Since certain events of which the Court took judicial notice indicated to it that the Russian Government exercised control over the central church authorities and that the American church acted to protect its pulpits and faith from such influences, the Court of Appeals felt that the Legislature's reasonable belief in such conditions justified the State in enacting a law to free the American group from infiltration of such atheistic or subversive influences.13
21
This legislation, Art. 5—C, in the view of the Court of Appeals, gave the use of the churches to the Russian Church in America on the theory that this church would most faithfully carry out the purposes of the religious trust.14 Thus dangers of political use of church pulpits would be minimized. Legislative power to punish subversive action cannot be doubted. If such action should be actually attempted by a cleric, neither his robe nor his pulpit would be a defense. But in this case no problem of punishment for the violation of law arises. There is no charge of subversive or hostile action by any ecclesiastic Here there is a transfer by statute of control over churches. This violates our rule of separation between church and state. That conclusion results from the purpose, meaning and effect of the New York legislation stated above, considered in the light of the history and decisions considered below.
22
Hierarchical churches may be defined as those organized as a body with other churches having similar faith and doctrine with a common ruling convocation or ecclesiastical head. In Watson v. Jones, 13 Wall. 679, 20 L.Ed. 666, they are spoken of in like terms.15 That opinion has been given consideration in subsequent church litigation—state and national.16 The opinion itself, however, did not turn on either the establishment or the prohibition of the free exercise of religion. It was a church controversy in the Third or Walnut Street Presbyterian Church of Louisville, Kentucky, arising out of the slavery conflict and was filled with the acrimony of that period. It was decided here at the 1871 Term. 'The government of the (Presbyterian) church is exercised by and through an ascending series of 'judicatories', known as Church Sessions, Presbyteries, Synods and a General Assembly.' Id., 13 Wall. at page 681, 20 L.Ed. 666. The opinion of this Court assumed without question that the Louisville church, its property and its officers were originally and up to the beginning of the disagreements subjected to the operation of the laws of the General Assembly of the Presbyterian Church. Id., 13 Wall. at page 683, 20 L.Ed. 666. The actual possession of the church property was in trustees; its operation or use controlled by the Session composed of elders.17 Both were groups elected at intervals by the members.
23
In May of 1865 the General Assembly, the highest judicatory of the church, made a declaration of loyalty to the Federal Government denouncing slavery, and directed that new members with contrary views should not be received. The Louisville Presbytery, the immediate superior of the Walnut Street Church, promptly issued a Declaration and Testimony, refusing obedience and calling for resistance to the alleged usurpation of authority. The Louisville Presbytery divided as did the Walnut Street Church and the proslavery group obtained admission into the Presbyterian Church of the Confederate States. In June 1867 the Presbyterian General Assembly for the United States declared the Presbytery and Synod recognized by the proslavery party were 'in no sense a true and lawful Synod and Presbytery in connection with and under the care and authority of the General Assembly of the Presbyterian Church in the United States of America.' They were "permanently excluded from connection with or representation in the Assembly.' By the same resolution the Synod and Presbytery adhered to by those whom (the proslavery party) opposed were declared to be the true and lawful Presbytery of Louisville, and Synod of Kentucky.' Id., 13 Wall. at page 692, 20 L.Ed. 666.
24
Litigation started in 1866 with a suit in the state court by certain of the antislavery group to have declared their right to act as duly elected additional elders 'in the management of church property for purposes of religious worship.' Id., 13 Wall. at page 685, 20 L.Ed. 666. As the Court of Appeals of Kentucky thought that certain acts of the Louisville Presbytery and the General Assembly of the United States, in pronouncing the additional elders duly elected, were void as beyond their functions, id., 13 Wall. at page 693, 20 L.Ed. 666,18 it refused the plea of the antislavery group and left the proslavery elders and trustees in control of the Walnut Street Church.
25
Thereupon a new suit, Watson v. Jones, was begun by alleged members of the church to secure the use of the Walnut Street Church for the antislavery group. This suit was to decide not the validity of an election of elders fought out in Watson v. Avery, supra, but which one of two bodies should be recognized as entitled to the use of the Walnut Street Presbyterian Church. It was determined that plaintiffs had a beneficial interest in the church property and therefore a standing to sue for its proper use, if they were members. Id., 13 Wall. at pages 697, 714, 20 L.Ed. 666. A schism was recognized. Id., 13 Wall. at page 717, 20 L.Ed. 666. It was held:
26
'The trustees obviously hold possession for the use of the persons who by the constitution, usages, and laws of the Presbyterian body, are entitled to that use.' Id., 13 Wall. at page 720, 20 L.Ed. 666.
27
They were required to recognize 'the true uses of the trust.' Id., 13 Wall. at page 722, 20 L.Ed. 666. Then turning to the consideration of an hierarchical church, as defined in note 15, supra, and, as it found the Presbyterian church to be, this Court said:
28
'In this class of cases we think the rule of action which should govern the civil courts, founded in a broad and sound view of the relations of church and state under our system of laws, and supported by a preponderating weight of judicial authority is, that, whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them.' Id., 13 Wall. at page 727, 20 L.Ed. 666.
29
As the General Assembly of the Church had recognized the antislavery group 'as the regular and lawful Walnut Street Church and officers,' id., 13 Wall. at page 694, 20 L.Ed. 666, newly elected, and the trial court had found complainants members of that group, and had entered a decree adjudging that this group's duly chosen and elected pastor, ruling elders and trustees 'respectively entitled to exercise whatever authority in the said church, or over its members or property, rightfully belonged to pastor, elders, and trustees, respectively, in churches in connection with 'The Presbyterian Church in the United States of America,' Old School, and according to the regulations and usages of that church,' id., 13 Wall. at page 698, 20 L.Ed. 666, this Court affirmed the decree.
30
In affirming, the Court recognized the contrariety of views between jurists as to civil jurisdiction over church adjudications having an effect upon property or its uses, when the civil courts determine the church judicatory has violated the church's organic law.19 Its ruling is summed up in these words:
31
'In this country the full and free right to entertain any religious belief, to practice any religious principle, and to teach any religious doctrine which does not violate the laws of morality and property, and which does not infringe personal rights, is conceded to all. The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect. The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, congregations, and officers within the general association, is unquestioned. All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for.' Id., 13 Wall. at pages 728 729, 20 L.Ed. 666.
32
This is applicable to 'questions of discipline, or of faith, or of ecclesiastical rule, custom, or law,' id., 13 Wall. at page 727, 20 L.Ed. 666.20 This controversy concerning the right to use St. Nicholas Cathedral is strictly a matter of ecclesiastical government, the power of the Supreme Church Authority of the Russian Orthodox Church to appoint the ruling hierarch of the archdiocese of North America. No one disputes that such power did lie in that Authority prior to the Russian Revolution.
33
Watson v. Jones, although it contains a reference to the relations of church and state under our system of laws,21 was decided without depending upon prohibition of state interference with the free exercise of religion. It was decided in 1872, before judicial recognition of the coercive power of the Fourteenth Amendment to protect the limitations of the First Amendment against state action. It long antedated the 1938 decisions of Erie R. Co. v. Tompkins and Ruhlin v. New York Life Ins. Co., 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 and 304 U.S. 202, 58 S.Ct. 860, 82 L.Ed. 1290, and, therefore, even though federal jurisdiction in the case depended solely on diversity, the holding was based on general law rather than Kentucky law.22 The opinion radiates, however, a spirit of freedom for religious organizations, an independence from secular control or manipulation, in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine. Freedom to select the clergy, where no improper methods of choice are proven,23 we think, must now be said to have federal constitutional protection as a part of the free exercise of religion against state interference.
34
Legislative Power.—The Court of Appeals of New York recognized, generally, the soundness of the philosophy of ecclesiastical control of church administration and polity but concluded that the exercise of that control was not free from legislative interference.24 That Court presented forcefully the argument supporting legislative power to act on its own knowledge of 'the Soviet attitude toward things religious.' 302 N.Y. pages 32—33, 96 N.E.2d at page 74. It was said:
35
'The Legislature realized that the North American church, in order to be free of Soviet interference in its affairs, had declared its temporary administrative autonomy in 1924, pursuant to the ukase of 1920, while retaining full spiritual communion with the patriarchate, and that there was a real danger that those properties and temporalities long enjoyed and used by the Russian Orthodox Church worshippers in this State would be taken from them by the representatives of the patriarchate.' 302 N.Y. at page 33, 96 N.E.2d at page 74.
36
It was thought that American Communications Ass'n v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925, supported the thesis that where there is some specific evil, found as a fact 'some infringement upon traditional liberties was justifiable' to effect a cure. 302 N.Y., at page 31, 96 N.E.2d at page 73. On that reasoning it was thought permissible, in view 'of the changed situation of the patriarchate in Russia', to replace it with the Russian Church in America as the ruling authority over the administration of the church. The legal basis for this legislative substitution was found in the theory that the Russian Church in America 'was the trustee which 'may be relied upon to carry out more effectively and faithfully the purposes of this religious trust (Carrier v. Carrier, 226 N.Y. 114, 123 N.e. 135)". Id., 302 N.Y. at page 30, 96 N.E.2d at page 72. Mindful of the authority of the Court of Appeals in its interpretation of the powers of its own legislature and with respect for its standing and ability, we do not agree with its statement as to legislative power over religious organizations.
37
In our view the Douds case may not be interpreted to validate New York's Article 5—C. That case involved the validity of § 9(h) of the National Labor Relations Act as amended, 61 Stat. 136, 146, 29 U.S.C. § 159(h), 29 U.S.C.A. § 159(h). That section forbade the N.L.R.B. from acting at the suggestion of a labor organization unless affidavits of its officers were filed denying affiliation with subversive organizations or belief in the overthrow of this Government by force or other unconstitutional means. We upheld the enactment as a proper exercise of the power to protect commerce from the evil of disreption from strikes so politically inspired. In so doing we said, 'legitimate attempts to protect the public, not from the remote possible effects of noxious ideologies, but from present excesses of direct, active conduct are not presumptively bad because they interfere with and, in some of its manifestations, restrain the exercise of First Amendment rights.' Id., 339 U.S. at page 399, 70 S.Ct. at page 684. And added, 'But insofar as the problem is one of drawing inferences concerning the need for regulation of particular forms of conduct from conflicting evidence, this Court is in no position to substitute its judgment as to the necessity or desirability of the statute for that of Congress.' Id., 339 U.S. at page 400, 70 S.Ct. at page 685. It is an exaggeration to say that those sound statements point to a legislative power to take away from a church's governing body and its duly ordained representative the possession and use of a building held in trust for the purposes for which it is being employed because of an apprehension, even though reasonable, that it may be employed for improper purposes. In Douds we saw nothing that was aimed at the free expression of views. Unions could have officers with such affiliations and political purposes as they might choose but the Government was not compelled to allow those officers an opportunity to disrupt commerce for their own political ends. We looked upon the affidavit requirement as an assurance that disruptive forces would not utilize a government agency to accomplish their purposes. Id., 339 U.S. at page 403, 70 S.Ct. at page 686.
38
In upholding the validity of Article 5—C, the New York Court of Appeals apparently assumes Article 5—C does nothing more than permit the trustees of the Cathedral to use it for services consistent with the desires of the members of the Russian Church in America. Its reach goes far beyond that point. By fiat it displaces one church administrator with another. It passes the control of matters strictly ecclesiastical from one church authority to another. It thus intrudes for the benefit of one segment of a church the power of the state into the forbidden area of religious freedom contrary to the principles of the First Amendment. Such prohibition differs from the restriction of a right to deal with Government allowed in Douds, in that the Union in the Douds case had no such constitutionally protected right. New York's Article 5—C directly prohibits the free exercise of an ecclesiastical right, the Church's choice of its hierarchy.
39
We do not think that New York's legislative application of a cy-pres doctrine to this trust avoids the constitutional rule against prohibition of the free exercise of religion. Late Corporation of Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1, 10 S.Ct. 792, 34 L.Ed. 478, relied upon by the appellee, does not support its argument. There the Church of Jesus Christ of Latter Day Saints had been incorporated as a religious corporation by the State of Deseret, with subsequent confirmation by the Territory of Utah. Its property was held for religious and charitable purposes. That charter was revoked by Congress and some of the property of the church was escheated to the United States for the use of the common schools of Utah. This Court upheld the revocation of the charter, relying on the reserved power of the Congress over the acts of territories, 136 U.S. at pages 45—46, 10 S.Ct. at pages 803—804. The seizure of the property was bottomed on the general rule that where a charitable corporation is dissolved for unlawful practices, id., 136 U.S. at pages 49—50, 10 S.Ct. at page 805, the sovereign takes and distributes the property according to the cy-pres doctrine to objects of charity and usefulness, e.g., schools. Id., 136 U.S. at pages 47, 50—51, 10 S.Ct. at pages 804, 805—806. A failure of the charitable purpose could have the same effect. Id., 136 U.S. at page 59, 10 S.Ct. at page 808. None of these elements exist to support the validity of the New York statute putting the Russian Orthodox churches of New York under the administration of the Russian Church in America. See notes 2 and 3, supra.
40
The record before us shows no schism over faith or doctrine between the Russian Church in America and the Russian Orthodox Church. It shows administrative control of the North American Diocese by the Supreme Church Authority of the Russian Orthodox Church, including the appointment of the ruling hierarch in North America from the foundation of the diocese until the Russian Revolution. We find nothing that indicates a relinquishment of this power by the Russian Orthodox Church.
41
Ours is a government which by the 'law of its being' allows no statute, state or national, that prohibits the free exercise of religion. There are occasions when civil courts must draw lines between the responsibilities of church and state for the disposition or use of property.25 Even in those cases when the property right follows as an incident from decisions of the church custom or law on ecclesiastical issues, the church rule controls.26 This under our Constitution necessarily follows in order that there may be free exercise of religion.
42
The decree of the Court of Appeals of New York must be reversed, and the case remanded to that court for such further action as it deems proper and not in contravention of this opinion. It is so ordered.
43
Reversed and remanded.
44
Mr. Justice FRANKFURTER, concurring.
45
Let me put to one side the question whether in our day a legislature could, consistently with due process, displace the judicial process and decide a particular controversy affecting property so as to decree that A not B owns it or is entitled to its possession. Obviously a legislature would not have that power merely because the property belongs to a church.
46
In any event, this proceeding rests on a claim which cannot be determined without intervention by the State in a religious conflict. St. Nicholas Cathedral is not just a piece of real estate. It is no more that than is St. Patrick's Cathedral or the Cathedral of St. John the Divine. A cathedral is the seat and center of ecclesiastical authority. St. Nicholas Cathedral is an archiepiscopal see of one of the great religious organizations. What is at stake here is the power to exercise religious authority. That is the essence of this controversy. It is that even though the religious authority becomes manifest and is exerted through authority over the Cathedral as the outward symbol of a religious faith.
47
The judiciary has heeded, naturally enough, the menace to a society like ours of attempting to settle such religious struggles by state action. And so, when courts are called upon to adjudicate disputes which, though generated by conflicts of faith, may fairly be isolated as controversies over property and therefore within judicial competence, the authority of courts is in strict subordination to the ecclesiastical law of a particular church prior to a schism. Watson v. Jones, 13 Wall. 679, 20 L.Ed. 666. This very limited right of resort to courts for determination of claims, civil in their nature, between rival parties among the communicants of a religious faith is merely one aspect of the duty of courts to enforce the rights of members in an association, temporal or religious, according to the laws of that association. See Gonzalez v. Roman Catholic Archbishop of Manila, 280 U.S. 1, 16—17, 50 S.Ct. 5, 7—8, 74 L.Ed. 131.
48
Legislatures have no such obligation to adjudicate and no such power. Assuredly they have none to settle conflicts of religious authority and none to define religious obedience. These aspects of spiritual differences constitute the heart of this controversy. The New York legislature decreed that one party to the dispute and not the other should control the common center of devotion. In doing so the legislature effectively authorized one party to give religious direction not only to its adherents but also to its opponents. See St. Nicholas Cathedral of Russian Orthodox Church in North America v. Kedroff, 302 N.Y. 1, 24—29, 96 N.E.2d 56, 68—72.
49
The arguments by which New York seeks to justify this inroad into the realm of faith are echoes of past attempts at secular intervention in religious conflicts. It is said that an impressive majority both of the laity and of the priesthood of the old local church now adhere to the party whose candidate New York enthroned, as it were, as Archbishop. Be that as it may, it is not a function of civil government under our constitutional system to assure rule to any religious body by a counting of heads. Our Constitution does assure that anyone is free to worship according to his conscience. A legislature is not free to vest in a schismatic head the means of acting under the authority of his old church, by affording him the religious power which the use and occupancy of St. Nicholas Cathedral make possible.
50
Again, it is argued that New York may protect itself from dangers attributed to submission by the mother church in Moscow to political authority To reject this claim one does not have to indulge in the tendency of lawyers to carry arguments to the extreme of empty formal logic. Scattered throughout the country there are religious bodies with ties to various countries of a world in tension—tension due in part to shifting political affiliation and orientation. The consideration which permeates the court's opinion below would give each State the right to assess the circumstances in the foreign political entanglements of its religious bodies that make for danger to the State, and the power, resting on plausible legislative findings, to divest such bodies of spiritual authority and of the temporal property which symbolizes it.
51
Memory is short but it cannot be forgotten that in the State of New York there was strong feeling against the Tsarist regime at a time when the Russian Church was governed by a Procurator of the Tsar. And when Mussolini exacted the Lateran Agreement, argument was not wanting by those friendly to her claims that the Church of Rome was subjecting herself to political authority.1 The fear, perhaps not wholly groundless, that the loyalty of its citizens might be diluted by their adherence to a church entangled in antagonistic political interests, reappears in history as the ground for interference by civil government with religious attachments.2 Such fear readily leads to persecution of religious beliefs deemed dangerous to ruling political authority. It was on this basis, after all, that Bismarck sought to detach German Catholics from Rome by a series of laws not too different in purport from that before us today.3 The long, unedifying history of the contest between the secular state and the church is replete with instances of attempts by civil government to exert pressure upon religious authority. Religious leaders have often made gestures of accommodation to such pressures. History also indicates that the vitality of great world religions survived such efforts. In any event, under our Constitution it is not open to the governments of this Union to reinforce the loyalty of their citizens by deciding who is the true exponent of their religion.
52
Finally, we are told that the present Moscow Patriarchate is not the true superior church of the American communicants. The vicissitudes of war and revolution which have beset the Moscow Patriarchate since 1917 are said to have resulted in a discontinuity which divests the present Patriarch of his authority over the American church. Both parties to the present controversy agree that the present Patriarch is the legitimately chosen holder of his office, and the account of the proceedings and pronouncements of the American schismatic group so indicate. Even were there doubt about this it is hard to see by what warrant the New York Legislature is free to substitute its own judgment as to the validity of Patriarch Alexy's claim and to disregard acknowledgment of the present Patriarch by his co-equals in the Eastern Confession, the Patriarchs of Constantinople, Alexandria, Antioch, and Jerusalem, and by religious leaders throughout the world, including the present Archbishop of York.4
53
These considerations undermine the validity of the New York legislation in that it enters the domain of religious control barred to the States by the Fourteenth Amendment.
54
Mr. Justice BLACK agrees with this opinion on the basis of his view that the Fourteenth Amendment makes the First Amendment applicable to the States.
55
Mr. Justice DOUGLAS, while concurring in the opinion of the Court, also joins this opinion.
56
Mr. Justice JACKSON, dissenting.
57
New York courts have decided an ordinary ejectment action involving possession of New York real estate in favor of the plaintiff, a corporation organized under the Religious Corporations Law of New York under the name 'Saint Nicholas Cathedral of the Russian Orthodox Church in North America.' Admittedly, it holds, and since 1925 has held, legal title to the Cathedral property. The New York Court of Appeals decided that it also has the legal right to its possession and control.
58
The appellant Benjamin's defense against this owner's demand for possession and the basis of his claimed right to enjoy possession of property he admittedly does not own is set forth in his answer to the ejectment suit in these words: 'Said premises pursuant to the above rules of the Russian Orthodox Church are held in trust for the benefit of the accredited Archbishop of said Archdiocese, to be possessed, occupied and used by said Archbishop as his residence, as a place for holding religious services, and other purposes related to his office and as the seat and headquarters for the administration, by him, of the affairs of the Archdiocese both temporal and spiritual.' And, says the appellant Benjamin, he is that Archbishop. These allegations are denied, and they define the issues as tendered to the state courts.
59
I greatly oversimplify the history of this controversy to indicate its nature rather than to prove its merits. This Cathedral was incorporated and built in the era of the Czar, under the regime of a state-ridden church in a church-ridden state. The Bolshevik did not free the church from the grip of state from the grip of the church, but it did nto free the church from the grip of the state. It only brought to the top a new master for a captive and submissive ecclesiastical establishment. By 1945, the Moscow patriarchy had been reformed and manned under the Soviet regime and it sought to re-establish in other countries its prerevolutionary control of church property and its sway over the minds of the religious. As the Court's opinion points out, it demanded of the Russian Church in America, among other things, that it abstain 'from political activities against the U.S.S.R.' The American Cathedral group, along with others, refused submission to the representative of the Moscow Patriarch, whom it regarded as an arm of the Soviet Government. Thus, we have an ostensible religious schism with decided political overtones.
60
If the Fourteenth Amendment is to be interpreted to leave anything to the courts of a state to decide without our interference, I should suppose it would be claims to ownership or possession of real estate within its borders and the vexing technical questions pertaining to the creation, interpretation, termination, and enforcement of uses and trusts, even though they are for religious and charitable purposes. This controversy, I believe, is a matter for settlement by state law and not within the proper province of this Court.
I.
61
As I read the prevailing opinions, the Court assumes that some transfer of control has been accomplished by legislation which results in a denial of due process. This, of course, would raise a question of deprivation of property, not of liberty, while only the latter issue is raised by the parties. And it could be sustained only by a finding by us that the legislation worked a transfer rather than a confirmation of property rights. The Court of Appeals seems to have regarded the statute merely as a legislative reaffirmation of principle the Court would find to be controlling in its absence.
62
But this Court apparently thinks that by mere enactment of the statute the legislature invaded a field of action reserved to the judiciary. However desirable we may think a rigid separation of powers to be (and I, for one, think it is basic in the Federal Government), I do not think the Fourteenth Amendment undertakes to control distribution of powers within the states. At all events, I do not think we are warranted in holding that New York may not enact this legislation in question, which is in form and in substance an amendment of its Religious Corporations Law.
63
Nothing in New York law required this denomination to incorporate its Cathedral. The Religious Corporations Law of the State expressly recognizes unincorporated churches (§ 2) and undertakes no regulation of them or their affairs. But this denomination wanted the advantages of a corporate charter for its Cathedral, to obtain immunity from personal liability and other benefits. This statute does not interfere with religious freedom but furthers it. If they elect to come under it, the statute makes separate provision for each of many denominations with corporate controls appropriate to its own ecclesiastical order. When it sought the privilege of incorporation under the New York law applicable to its denomination, it seems to me that this Cathedral and all connected with its temporal affairs were submitted to New York law.
64
As a consequence of this Court's decision in Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 4 L.Ed. 629, the Constitution of New York since 1846 has authorized the legislature to create corporations by general laws and special acts, subject, however, to a reservation that all such acts 'may be altered from time to time or repealed.' New York Const., Art. X, § 1. That condition becomes a part of every corporate charter subsequently granted by New York. Lord v. Equitable Life Assurance Society of United States, 194 N.Y. 212, 87 N.E. 443, 22 L.R.A.,N.S., 420; People ex rel. Cooper Union for Advancement of Science & Art v. Gass, 190 N.Y. 323, 83 N.E. 64; Pratt Institute v. City of New York, 183 N.Y. 151, 75 N.E. 1119.
65
What has been done here, as I see it, is to exercise this reserved power which permits the State to alter corporate controls in response to the lessons of experience. Of course, the power is not unlimited and could be so exercised as to deprive one of property without due process of law. But, I do not think we can say that a legislative application of a principle so well established in our common law as the cy-pres doctrine is beyond the powers reserved by the New York Constitution.
II.
66
The Court holds, however, that the State cannot exercise its reserved power to control this property without invading religious freedom, because it is a Cathedral and devoted to religious uses. I forbear discussion of the extent to which restraints imposed upon Congress by the First Amendment are transferred against the State by the Fourteenth Amendment beyond saying that I consider that the same differences which apply to freedom of speech and press, see dissenting opinion in Beauharnais v. Illinois, 343 U.S. 250, 287, 72 S.Ct. 725, 746, are applicable to questions of freedom of religion and of separation of church and state.
67
It is important to observe what New York has not done in this case. It has not held that Benjamin may not act as Archbishop or be revered as such by all who will follow him. It has not held that he may not have a Cathedral. Indeed, I think New York would agree that no one is more in need of spiritural guidance than the Soviet faction. It has only held that this cleric may not have a particular Cathedral which, under New York law, belongs to others. It has not interfered with his or anyone's exercise of his religion. New York has not outlawed the Soviet-controlled sect nor forbidden it to exercise its authority or teach its dogma in any place whatsoever except on this piece of property owned and rightfully possessed by the Cathedral Corporation.
68
The fact that property is dedicated to a religious use cannot, in my opinion, justify the Court in sublimating an issue over property rights into one of deprivation of religious liberty which alone would bring in the religious guaranties of the First Amendment. I assume no one would pretend that the State cannot decide a claim of trespass, larceny, conversion, bailment or contract, where the property involved is that of a religious corporation or is put to religious use, without invading the principle of religious liberty.
69
Of course, possession of the property will help either side that obtains it to maintain its prestige and to continue or extend its sway over the minds and souls of the devout. So would possession of a bank account, an income-producing office building, or any other valuable property. But if both claimants are religious corporations or personalities, can not the State decide the issues that arise over ownership and possession without invading the religious freedom of one or the other of the parties?
70
Thus, if the American group, which owns the title to the Cathedral, had by force barred Benjamin from entering it physically, would the Court say it was an interference with religious freedom to entertain and decide his ejectment action? If state courts are to decide such controversies at all instead of leaving them to be settled by a show of force, is it constitutional to decide for only one side of the controversy and unconstitutional to decide for the other? In either case, the religious freedom of one side or the other is impaired if the temporal goods they need are withheld or taken from them.
71
As I have earlier pointed out, the Soviet Ecclesiast's claim, denial of which is said to be constitutional error, is not that this New York property is impressed with a trust by virtue of New York law. The claim is that it is impressed with a trust by virtue of the rules of the Russian Orthodox Church. This Court so holds.
72
I shall not undertake to wallow through the complex, obscure and fragmentary details of secular and ecclesiastical history, theology, and canon law in which this case is smothered. To me, whatever the canon law is found to be and whoever is the rightful head of the Moscow patriarchate, I do not think New York law must yield to the authority of a foreign and unfriendly state masquerading as a spiritual institution. See 'The Soviet Propaganda Program,' Staff Study No. 3, Subcommittee on Overseas Information Programs of the United States, 82d Cong., 2d Sess.
73
I have supposed that a State of this Union was entirely free to make its own law, independently of any foreign-made law, except as the Full Faith and Credit Clause of the Constitution might require deference to the law of a sister state or the Supremacy Clause require submission to federal law. I do not see how one can spell out of the principles of separation of church and state a doctrine that a state submit property rights to settlement by canon law. If there is any relevant inference to be drawn, I should think it would be to the contrary, though I see no obstacle to the state allowing ecclesiastical law to govern in such a situation if it sees fit. I should infer that from the trend of such decisions as Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188; Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477; Griffin v. McCoach, 313 U.S. 498, 61 S.Ct. 1023, 85 L.Ed. 1481.
74
The only ground pressed upon this appeal is that the judgment below violates the religious freedom guaranteed by the Fourteenth Amendment. I find this contention so insubstantial that I would dismiss the appeal. Whether New York has arrived at the correct solution of this question is a matter on which its own judges have disagreed. But they have disagreed within the area which is committed to them for agreement or disagreement and I find nothing which warrants our invading their jurisdiction.
1
A sobor is a convention of bishops, clergymen and laymen with superior powers, with the assistance of which the church officials rule their dioceses or districts.
There is no problem of title. It is in the appellee corporation. The issue is the right of use. St. Nicholas Cathedral of Russian Orthodox Church in North America v. Kedroff, 302 N.Y. 1, 20, 96 N.E.2d 56, 66.
The deed to the Cathedral Corporation required the grantee to hold the property in accordance with the terms of the Act of 1925, set out at the opening of this opinion. As said by the Court of Appeals, 302 N.Y. at page 20, 96 N.E.2d at page 66:
'Plaintiff does not dispute this trust theory, but on the contrary relies upon it. Plaintiff has endeavored to prove that the beneficial use of the property today rightfully belongs to the Russian church in America, Religious Corporations Law, § 105, which was forced to declare its administrative autonomy at the Detroit sobor of 1924 in order to preserve and adhere to those principles and practices fundamental to the Russian Orthodox faith, free from the influence of an atheistic and antireligious foreign civil government.'
See also Religious Corporations Law, McKinney's Consol.Laws, c. 51, § 5.
2
50 McKinney's N.Y.Laws § 105:
'The 'Russian Church in America', as that term is used anywhere in this article, refers to that group of churches, cathedrals, chapels, congregations, societies, parishes, committees and other religious organizations of the Eastern Confession (Eastern Orthodox or Greek Catholic Church) which were known as (a) Russian American Mission of the Russian Orthodox Church from in or about seventeen hundred ninety-three to in or about eighteen hundred seventy; (b) Diocese of Alaska and the Aleutian Islands of the Russian Orthodox Church from in or about eighteen hundred seventy to or in or about nineteen hundred four; (c) Diocese of North America and the Aleutian Islands (or Alaska) of the Russian Orthodox Church from in or about nineteen hundred four to in or about nineteen hundred twenty-four; and (d) Russian Orthodox Greek Catholic Church of North America since in or about nineteen hundred twenty-four; and were subject to the administrative jurisdiction of the Most Sacred Governing Synod in Moscow until in or about nineteen hundred seventeen, later the Patria(r)chate of Moscow, but now constitute an administratively autonomous metropolitan district created pursuant to resolutions adopted at a general convention (sobor) of said district held at Detroit, Michigan, on or about or between April second to fourth, nineteen hundred twenty-four.
'A 'Russian Orthodox Church', as that term is used anywhere in this article, is a church, cathedral, chap(t)el, congregation, society, parish, committee or other religious organization founded and established for the purpose and with the intent of adhering to, and being subject to the administrative jurisdiction of said mission, diocese or autonomous metropolitan district hereinabove defined as the Russian Church in America.'
3
Id., § 107:
'1. Every Russian Orthodox church in this state, whether incorporated before or after the creation of said autonomous metropolitan district, and whether incorporated or reincorporated pursuant to this article or any other article of the religious corporations law, or any general or private law, shall recognize and be and remain subject to the jurisdiction and authority of the general convention (sobor), metropolitan archbishop or other primate or hierarch, the council of bishops, the metropolitan council and other governing bodies and authorities of the Russian Church in America, pursuant to the statutes for the government thereof adopted at a general convention (sobor) held in the city of New York on or about or between October fifth to eighth, nineteen hundred thirty-seven, and any amendments thereto and any other statutes or rules heretofore or hereafter adopted by a general convention (sobor) of the Russian Church in America and shall in all other respects conform to, maintain and follow the faith, doctrine, ritual, communion, discipline, canon law, traditions and usages of the Eastern Confession (Eastern Orthodox or Greek Catholic Church).
'3. The trustees of every Russian Orthodox church shall have the custody and control of all temporalities and property, real and personal, belonging to such church and of the revenues therefrom and shall administer the same in accordance with the by-laws of such church, the normal statutes for parishes of the Russian Church in America approved at a general convention (sobor) thereof held at Cleveland, Ohio, on or about or between November twentieth or twenty-third, nineteen hundred thirty-four, and any amendments thereto and all other rules, statutes, regulations and usages of the Russian Church in America.'
4
Hebert v. State of Louisiana, 272 U.S. 312, 317, 47 S.Ct. 103, 104, 71 L.Ed. 270; Winters v. New York, 333 U.S. 507, 514, 68 S.Ct. 665, 669, 92 L.Ed. 840.
The court expressed its conclusion in reversing the judgment of the Appellate Division of the Supreme Court, St. Nicholas Cathedral of Russian Orthodox Church in North America v. Kedroff, 276 App.Div. 309, 94 N.Y.S.2d 453, which had affirmed the Trial Term. 192 Misc. 327, 77 N.Y.S.2d 333. The Court of Appeals held:
'The only construction which gives meaning to all the language in sections 105 and 107 is that the statute was intended to apply to those Russian Orthodox churches founded and established before 1924 for the purpose of adhering and being subject to the North American Mission or North American Diocese, and to those Russian Orthodox churches founded and established after 1924 for the purpose of adhering and being subject to the autonomous metropolitan district. The majority in the Appellate Division further intimated that to read the statute literally would result in an interference in ecclesiastical concerns not within the competency of the Legislature. The latter suggestion is the only one which requires discussion, for, as already indicated, the intent of the Legislature (as distinguished from its competency) is unmistakable.' 302 N.Y. at page 29, 96 N.E.2d at page 71.
5
First Amendment to the Constitution:
'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; * * *.'
6
Hamilton v. Regents of University of California, 293 U.S. 245, 262, 55 S.Ct. 197, 204, 79 L.Ed. 343; Cantwell v. State of Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213; Everson v. Board of Education of Ewing Tp., 330 U.S. 1, 14—15, 67 S.Ct. 504, 510, 511, 91 L.Ed. 711; People of State of Illinois ex rel. McCollum v. Board of Education of School Dist. No. 71, Champaign County, Ill., 333 U.S. 203, 210—211, 68 S.Ct. 461, 464, 465, 92 L.Ed. 648; Zorach v. Clauson, 343 U.S. 306, 310, 72 S.Ct. 679, 682.
7
Fortescue, supra (1916); Brian-Chaninov, The Russian Church (1931), c. VIII; Zemnov, The Russians and Their Church (1945); French, The Eastern Orthodox Church (1951), c. VII;Danzas, The Russian Church (1936); Anderson, People, Church and State in Modern Russia (1944), pp. 121—140; Bolshakoff, Foreign Missions of the Russian Orthdox Church (1943), c. IV.
8
The attitude of the Russian Church in America will be made sufficiently plain by these extracts from their records of action taken at the Detroit Sobor, 1924:
'Point 1. Temporarily, until the convocation of the All Russian Sobor further indicated in Point 5, to declare the Russian Orthodox Diocese in America a self-governed Church so that it be governed by its own elected Archbishop by means of a Sobor of Bishops, a Council composed of those elected from the clergy and laity, and periodic Sobors of the entire American Church.
'Point 5. To leave the final regulation of questions arising from the relationship of the Russian and the American Churches to a future Sobor of the Russian Orthodox Church which will be legally convoked, legally elected, will sit with the participation of representatives of the American Church under conditions of political freedom, guaranteeing the fullness and authority of its decisions for the entire Church, and will be recognized by the entire Oecumenical Orthodox Church as a true Sobor of the Russian Orthodox Church.'
9
Nemolovsky v. Rykhloff, 187 App.Div. 290, 175 N.Y.S. 617; Kedrovsky v. Archbishop and Consistory of Russian Orthodox Greek Catholic Church, 195 App.Div. 127, 186 N.Y.S. 346; Kedrovsky v. Rojdesvensky, 214 App.Div. 483, 212 N.Y.S. 273; Id., 242 N.Y. 547, 152 N.E. 421; Kedrovsky v. Archbishop and Consistory of Russian Orthodox Greek Catholic Church, 218 App.Div. 121, 217 N.Y.S. 873; Id., 218 App.Div. 124, 217 N.Y.S. 875; Id., 220 App.Div. 750, 222 N.Y.S. 831; Id., 249 N.Y. 75, 162 N.E. 588; Id., 249 N.Y. 516, 164 N.E. 566; Nikulnikoff v. Archbishop and Consistory of Russian Orthodox Greek Catholic Church, 142 Misc. 894, 255 N.Y.S. 653; Waipa v. Kushwara, 259 App.Div. 843, 20 N.Y.S.2d 174; Id., 283 N.Y. 781, 28 N.E.2d 417.
10
The Court said, 302 N.Y. 1, 96 N.E.2d 56:
'The Legislature has made a determination that the 'Russian Church of America' was the one which, to use our words in 249 N.Y. at pages 77—78, 162 N.E. at page 589, was the trustee which 'may be relied upon to carry out more effectively and faithfully the purposes of this religious trust (Carrier v. Carrier, 226 N.Y. 114, 123 N.E. 135)' by reason of the changed situation of the patriarchate in Russia.' 302 N.Y. at page 30, 96 N.E.2d at page 72.
'The courts have always recognized that it is the province of the Legislature to make the underlying findings of fact which give meaning and substance to its ultimate directives. The courts have traditionally refused to consider the wisdom or technical validity of such findings of fact, ifthere be some reasonable basis upon which they may rest.' 302 N.Y. at page 31, 96 N.E.2d at page 72.
'The Legislature of the State of New York, like the Congress, must be deemed to have investigated the whole problem carefully before it acted. The Legislature knew that the central authorities of the Russian Orthodox Church in Russia had been suppressed after the 1917 revolution, and that the partriarchate was later resurrected by the Russian Government. The Legislature, like Congress, knew the character and method of operation of international communism and the Soviet attitude toward things religious. The Legislature was aware of the contemporary views of qualified observers who have visited Russia and who have had an opportunity to observe the present status of the patriarchate in the Soviet system. The Legislature realized that the North American church, in order to be free of Soviet interference in its affairs, had declared its temporary administrative autonomy in 1924, pursuant to the ukase of 1920, while retaining full spiritual communion with the patriarchate, and that there was a real danger that those properties and temporalities long enjoyed and used by the Russian Orthodox Church worshippers in this State would be taken from them by the representatives of the patriarchate. On the basis of these facts, and the facts stated (supra) and no doubt other facts we know not of, our Legislature concluded that the Moscow Patriarchate was no longer capable of functioning as a true religious body, but had become a tool of the Soviet Government primarily designed to implement its foreign policy. Whether we, as judges, would have reached the same conclusion is immaterial. It is sufficient that the Legislature reached it, after full consideration of all the facts.' 302 N.Y. at pages 32—33, 96 N.E.2d at page 73.
11
'The trustees of every religious corporation shall have the custody and control of all the temporalities and property, real and personal, belonging to the corporation and of the revenues therefrom, and shall administer the same in accordance with the discipline, rules and usages of the corporation and of the ecclesiastical governing body, if any, to which the corporation is subject, * * *.'
12
302 N.Y. at page 30, 96 N.E.2d at page 72:
'As a broad guide this rule undoubtedly has worked well, but it is by no means a constitutional doctrine not subject to change or modification by the same Legislature which announced it, in cases where literal enforcement would be unreasonable and opposed to the public interest. The Legislature, in the exercise of its extensive and acknowledged power to act for the common welfare, may find as a fact that a situation has arisen of such novelty and uniqueness that existing law is incapable of performing its avowed function—the preservation of religious temporalities for the use of their original and accustomed beneficiaries. If the Legislature find as a fact that, because of drastically changed circumstances, the accustomed beneficiaries of religious properties are thus threatened with their loss, and if there be a basis for such finding, we perceive no constitutional objection to a legislative attempt to trace and identify, as of today, the authentic group entitled to the administration of such properties.'
13
302 N.Y. at page 13, 96 N.E.2d at page 62:
'The control of all phases of Russian life by the Government was not as apparent in 1924 as it is a quarter of a century later and on the surface, at least, the case appeared to be a proper one for the application of the rule that in an ecclesiastical dispute involving a denominational church, the decision of the highest church judicatories will be accepted as final and conclusive by the civil courts, Trustees of Presbytery of N(ew) Y(ork) v. Westminster Presbyterian Church, 222 N.Y. 305, 315, 118 N.E. 800, 802; Watson v. Jones, 13 Wall. 679, 724—727, 20 L.Ed. 666, Religious Corporations Law, §§ 4, 5.'
'* * * we feel we must accept the historical statements contained in the dissenting opinion of Mr. Justice Van Voorhis, below: '* * * In recent public pronouncements the State Department, and our representatives in the United Nations, have frequently recognized and denounced the suppression of human rights and basic liberties in religion as well as in other aspects of life, existing in Soviet Russia and in all of its satellite states. * * *" Id., 302 N.Y. at page 23, 96 N.E.2d at page 68.
14
See note 10, supra.
15
'The third is where the religious congregation or ecclesiastical body holding the property is but a subordinate member of some general church organization in which there are superior ecclesiastical tribunals with a general and ultimate power of control more or less complete, in some supreme judicatory over the whole membership of that general organization.' 13 Wall. 679, 722—723, 20 L.Ed. 666.
16
Zollman, American Church Law (1933), c. 9. E.g., Shepard v. Barkley, 247 U.S. 1, 38 S.Ct. 422, 62 L.Ed. 939; Barkley v. Hayes, D.C., 208 F. 319, 326; McGinnis v. Watson, 41 Pa. 9; State of Missouri ex rel. Watson v. Farris, 45 Mo. 183, 197—198; First English Lutheran Church v. Evangelical Lutheran Synod of Kansas and Adjacent States, 10 Cir., 135 F.2d 701. Cf. Gibson v. Armstrong, 7 B. Mon., Ky., 481; German Reformed Church v. Commonwealth ex rel. Seibert, 3 Pa. 282.
17
'One or two propositions which seem to admit of no controversy are proper to be noticed in this connection. 1. Both by the act of the Kentucky legislature creating the trustees of the church a body corporate, and by the acknowledged rules of the Presbyterian Church, the trustees were the mere nominal title holders and custodians of the church property, and other trustees were, or could be elected by the congregation, to supply their places once in every two years. 2. That in the use of the property for all religious services or ecclesiastical purposes, the trustees were under the control of the church session. 3. That by the constitution of all Presbyterian churches, the session, which is the governing body in each, is composed of the ruling elders and pastor, and in all business of the session the majority of its members govern, the number of elders for each congregation being variable.' Id., 13 Wall. at page 720, 20 L.Ed. 666.
18
Watson v. Avery, 2 Bush, Ky., 332, 347, et seq.
'But we hold that the assembly, like other courts, is limited in its authority by the law under which it acts; and when rights of property, which are secured to congregations and individuals by the organic law of the church, are violated by unconstitutional acts of the higher (church) courts, the parties thus aggrieved are entitled to relief in the civil courts, as in ordinary cases of injury resulting from the violation of a contract, or the fundamental law of a voluntary association.' Id., 2 Bush at page 349.
19
Compare Watson v. Avery, note 27, supra, at page 349 of 2 Bush, with Watson v. Jones, supra, 13 Wall. at page 732 et seq., 20 L.Ed. 666.
20
The decision has encountered vivid and strong criticism for the breadth of its statement that where 'a subject-matter of dispute, strictly and purely ecclesiastical in its character,' is decided, the civil court may not examine the conclusion to see whether the decision exceeds the powers of the judicatory. Id., 13 Wall. at page 733, 20 L.Ed. 666. See Zollman, American Church Law (1933), c. 9, p. 291. The criticism does not go so far, however, as to condemn the nonreviewability of questions of faith, religious doctrine and ecclesiastical government, Watson v. Jones, 13 Wall. at pages 729, 732, 20 L.Ed. 666, when within the 'express or implied stipulations of the agreement of membership.' Zollman, supra, §§ 310, 311, 315, 340.
21
Id., 13 Wall. at page 727, 20 L.Ed. 666. See, 344 U.S. 113, 73 S.Ct. 153, supra.
22
Barkley v. Hayes, D.C., 208 F. 319, 334; Sherard v. Walton, D.C., 206 F. 562, 564; Helm v. Zarecor, D.C., 213 F. 648, 657.
23
Gonzalez v. Roman Catholic Archbishop of Manila, 280 U.S. 1, 16—17, 50 S.Ct. 5, 7, 74 L.Ed. 131:
'Because the appointment is a cononical act, it is the function of the church authorities to determine what the essential qualifications of a chaplain are and whether the candidate possesses them. In the absence of fraud, collusion, or arbitrariness, the decisions of the proper church tribunals on matters purely ecclesiastical, although affecting civil rights, are accepted in litigation before the secular courts as conclusive, because the parties in interest made them so by contract or otherwise. Under like circumstances, effect is given in the courts to the determinations of the judicatory bodies established by clubs and civil associations.'
See Brundage v. Deardorf, C.C., 55 F. 839, where Taft, Circuit Judge, in overruling a demurrer, stated: 'Even if the supreme judicatory has the right to construe the limitations of its own power, and the civil courts may not interfere with such a construction, and must take it as conclusive, we do not understand the supreme court, in Watson v. Jones, to hold that an open and avowed defiance of the original compact, and an express violation of it, will be taken as a decision of the supreme judicatory which is binding on the civil courts.' 55 F. at page 847.
Later the case was considered on appeal by the Circuit Court of Appeals; Lurton, Circuit Judge, writing, thought that the facts proven showed conclusively that Watson v. Jones did control. 92 F. 214, 230.
24
St. Nicholas Cathedral of Russian Orthodox Church in North America v. Kedroff, 302 N.Y. 1, 30, 96 N.E.2d 56, 72, Note 12, supra.
25
Ponce v. Roman Catholic Apostolic Church in Porto Rico, 210 U.S. 296, 322, 28 S.Ct. 737, 747, 52 L.Ed. 1068.
26
Watson v. Jones, supra; Barkley v. Hayes, D.C., 208 F. 319, 327, affirmed on appeal, Duvall v. Synod of Kansas of Presbyterian Church, 8 Cir., 222 F. 669; Shepard v. Barkley, 247 U.S. 1, 38 S.Ct. 422, 62 L.Ed. 939.
1
The Encyclopedia Britannica recounts that under the agreement between the Papal See and Mussolini, 'The supremacy of the state was recognized by compelling bishops and archbishops to swear loyalty to the government.' Encyclopedia Britannica: 'Anticlericalism,' 62, 62A (1948 ed.).
2
Such apprehension, at least in part, seems to have underlain two important religious controversies in a nation as devoted to freedom as Great Britain and as recently as a century ago. Both the dispute giving rise to the Free Church of Scotland Appeals and the brief but vigorous anti-Catholic outburst of 1850 are not unfairly attributable to a claim by the State of comprehensive loyalty, undeflected by the competing claims of religious faith. See Laski, The Problem of Sovereignty, 27—68, 121 210. See also Buchanan, The Ten Years' Conflict (Edinburgh 1849); Free Church of Scotland v. Overtown, (1904) A.C. 515; Free Church of Scotland Appeals (Orr. ed., Edinburgh, 1904).
3
Reichs-Gesetzblatt, 1871, p. 442; Reichs-Gesetzblatt, 1872, p. 253; Reichs-Gesetzblatt, 1874, p. 43; Reichs-Gesetzblatt, 1876, p. 28; 5 Gesetz-Sammlung fur die Koniglich Preussischen Staaten, 154, 221, 223, 225, 228, 337, 342; 6 id., at 30, 38, 40, 75, 170; 7 id., at 291. These laws have been thus summarized: 'The Falk Laws are an attempt to insist on the universal paramountcy of German influences. The expulsion of the Jesuits removed an order which he (Bismarck) believed to be concerned with the promotion of Polish interests. The refusal of bishoprics to any save a German who has followed a course of study approved by the government has a clear purport * * * of purging the Catholic episcopate of men not likely to be in sympathy with German ideals. * * * The twenty-fourth article went even further and gave the State the right of interference with ecclesiastical functions where it deemed them improperly performed. * * * The law of the twentieth of May, 1874, virtually handed over the control of vacant bishoprics to the State. * * * Catholic Churches on Prussian soil were handed over to the old Catholics (those refusing to adhere to the newly-promulgated dogma of papal infallibility) in such parishes as those in which the majority consisted of their sympathisers, for certain hours of the day * * *.' Laski, op. cit. supra, note 2, at 256—258. Bismarck's Culturkampf, of which these laws were a part, is fully discussed in Goyau, Bismarck et l'Eglise. A full text of the laws may be found in the appendix to that work.
4
See Garbett, In an Age of Revolution, 207—213; Niemo ller, Why I Went to Moscow, The Christian Century, March 19, 1952, p. 338.
| 23
|
344 U.S. 141
73 S.Ct. 124
97 L.Ed. 152
BROWN et al.v.BOARD OF EDUCATION OF TOPEKA, SHAWNEE COUNTY, KANSAS, et al.
No. 8.
Decided Nov. 24, 1952.
PER CURIAM.
1
This action was instituted by the appellants attacking a Kansas statute which authorized segregation in the schools of that State. It was urged that the State of Kansas was without power to enact such legislation, claimed by appellants to be in contravention of the Fourteenth Amendment.
2
In the District Court, the State, by its Governor and Attorney General, intervened and defended the constitutionality of the statute. The court upheld its validity, D.C., 98 F.Supp. 797.
3
In this Court, the appellants continue their constitutional attack. No appearance has been entered here by the State of Kansas, the Board of Education of Topeka, and the other appellees; nor have they presented any brief in support of the statute's validity. The Court has been advised by counsel for the Board of Education that it does not propose to appear in oral argument or present a brief.
4
Because of the national importance of the issue presented and because of its importance to the State of Kansas, we request that the State present its views at oral argument. If the State does not desire to appear, we request the Attorney General to advise whether the State's default shall be construed as a concession of invalidity.
5
Order accordingly.
| 89
|
344 U.S. 133
73 S.Ct. 135
97 L.Ed. 146
MANDOLIv.ACHESON, Secretary of State.
No. 15.
Argued Oct. 17, 1952.
Decided Nov. 24, 1952.
Mr. Jack Wasserman, Washington, D.C., for petitioner.
Mr. Oscar H. Davis, Washington, D.C., for respondent.
Mr. Justice JACKSON delivered the opinion of the Court.
1
This case presents but a single question, upon which petitioner and the Government are substantially agreed that the judgment of the Court of Appeals should be reversed.1 Does a United States citizen by birth who by foreign law derives from his parents citizenship of a foreign nation lose his United States citizenship by foreign residence long continued after attaining his majority?
2
Petitioner Mandoli was born in this country, of unnaturalized Italian parents. These circumstances made him a citizen of the United States by virtue of our Constitution and a national of Italy by virtue of Italian law. While he was a suckling, his parents returned to Italy taking him with them. At about the age of fifteen, he sought to come to the United States; but permission was refused by the American Consul at Palermo upon the ground that he was too young to take the journey unaccompanied.
3
In 1931, Mandoli saw brief service in the Italian army. In 1937, being 29 or 30 years of age, he attempted to come to the United States, but was rejected because of such army service. He renewed the effort in 1944, with the same result. In 1948, he was granted a certificate of identity which permitted him to enter the United States for prosecution of an action to establish his citizenship.
4
Judgment in the District Court went against him on the ground that expatriation had resulted from two causes: first, contrary to his contentions, it found that his service in the Italian army was voluntary and that he then took an oath of allegiance to the King of Italy; second, that he continued to reside in Italy after attaining his majority, thereby electing between his dual citizenships in favor of that of Italy.2
5
The Government abandoned the first ground because the Attorney General ruled that such service in the Italian army by one similarly situated could 'only be regarded as having been taken under legal compulsion amounting to duress.' He said, 'The choice of taking the oath or violating the law was for a soldier in the army of Fascist Italy no choice at all.'3 The Court of Appeals, however, relying largely on Perkins v. Elg, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320, affirmed upon the ground that failure to return to the United States upon the attainment of his majority operated to extinguish petitioner's American citizenship.4 We conclude that Mandoli has not lost his citizenship.
6
It would be as easy as it would be unrewarding to point out conflict in precept and confusion in practice on this side of the Atlantic, where ideas of nationality and expatriation were in ferment during the whole Nineteenth Century. Reception of the common law confronted American courts with a doctrine that a national allegiance into which one was born could be renounced only with consent of his sovereign. Europen rulers, losing subjects (particularly seamen) to the New World, adhered fiercely to the old doctrine. On the other hand, the United States, prospering from the migrant's freedom of choice, became champion of the individual's right to expatriate himself, for which it contended in diplomacy and fought by land and by sea. However, this personal freedom of expatriation was not always recognized by our own courts, because of their deference to common-law precedent. Finally, Congress, by the Act of July 27, 1868, declared that 'the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness' and that 'any declaration, instruction, opinion, order, or decision of any officers of this government which denies, restricts, impairs, or questions the right of expatriation, is hereby declared inconsistent with the fundamental principles of this government.'5
7
But this statute left unanswered many questions as to the overt acts that would effect a voluntary expatriation by our own citizens or would cause an involuntary forfeiture of citizenship. Prior to 1907, courts and administrators were left to devise their own answers.
8
Preparatory to legislative action on the subject, Congress sought and received a report of a special citizenship board. Reviewing judicial decisions, this report concluded that the courts recognized well-established doctrines of election in cases dealing with rights of person with dual citizenship. This board recommended that Congress follow what it assumed to be established decisional law and enact, among other things, that expatriation be assumed as to any citizen who became domiciled in a foreign state, with a rebuttable presumption of foreign domicile from five years of residence in a foreign state.6 This was proposed as to all citizens and not merely those possessing dual citizenship. Congress, however, instead of accepting this broad doctrine of expatriation, by the Expatriation Act of 1907 limited the presumption of expatriation from foreign residence to the case of naturalized but not of nativeborn citizens.7
9
If petitioner, when he became of full age in 1928, were under a statutory duty to make an election and to return to this country for permanent residence if he elected United States citizenship, that duty must result from the 1907 Act then applicable. In the light of the foregoing history, we can find no such obligation imposed by that Act; indeed, it would appear that the proposal to impose that duty was deliberately rejected.8
10
The Nationality Act of 1940,9 though not controlling here, shows the consistency of congressional policy not to subject a citizen by birth to the burden and hazard of election at majority. This comprehensive revision and codification of the laws relating to citizenship and nationality was prepared at the request of Congress by the Departments of State, Justice and Labor. The State Department proposed a new provision requiring an American-born national taken during minority to the country of his other nationality to make an election and to return to the United States, if he elected American nationality, on reaching majority. The Departments of Justice and Labor were opposed and, as a consequence, it was omitted from the proposed bill. This disagreement between the Departments was called to the attention of the Congress.10 While in some other respects Congress enlarged the grounds for loss of nationality, it refused to require a citizen by nativity to elect between dual citizenships upon reaching a majority.11
11
The Court of Appeals, however, applied such a rule because it understood that this Court, in Perkins v. Elg, supra, had declared it to be the law. Miss Elg was American-born, of naturalized parents Swedish in origin. They took her to Sweden when she was but four years old, where she remained during her nonage. By virtue of a Swedish-American Treaty of 1869, this resumption of residence in Sweden repatriated the parents, which carried with it Swedish citizenship for their minor child. Under the Act of 1907, any American citizen is deemed expatriated if naturalized in a foreign state in conformity with its laws. Undoubtedly, Miss Elg had become naturalized under the laws of Sweden. But it was not by any act of her own or within her control, and about eight months after she became twenty-one she sought and obtained an American passport and returned to this country where she resided for something over five years. American immigration officials then decided that her derivative naturalization had deprived her of American citizenship and put their harsh and technical doctrine to test by instituting proceedings to deport her. That case did not present and the Court could not properly have decided any question as to consequences of a failure to elect American citizenship, for Miss Elg promptly did so elect and decisively evidenced it by resuming residence here. What it held was that citizenship conferred by our Constitution upon a child born under its protection cannot be forfeited because the citizen during nonage is a passive beneficiary of foreign naturalization proceedings. It held that Miss Elg had acquired a derivative dual-citizenship but had not suffered a derivative expatriation. In affirming her right to return to and remain in this country, it did not hold that it was mandatory for her to do so.
12
We find no warrant in the statutes for concluding that petitioner has suffered expatriation. And, since Congress has prescribed a law for this situation, we think the dignity of citizenship which the Constitution confers as a birthright upon every person born within its protection is not to be withdrawn or extinguished by the courts except pursuant to a clear statutory mandate.12 The judgment of the Court of Appeals should be reversed, with directions to remand the case to the District Court for the entry of an order declaring that the petitioner is a citizen of the United States.
13
Reversed and so ordered.
14
Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE, Mr. Justice REED, and Mr. Justice CLARK concur, dissenting.
15
At the times relevant here Congress made the taking of 'an oath of allegiance to any foreign state' the ground for loss of American citizenship. 34 Stat. 1228, 8 U.S.C. § 17.1 The findings of the District Court in this case state that 'On May 24, 1931, the plaintiff took an oath of allegiance to the King of Italy.' That finding is uncontroverted here and the precise circumstances surrounding the taking of the oath are unexplained. All we know is that plaintiff, without protest, was inducted into the Italian Army and served there from April 14, 1931, to September 5, 1931.
16
If we are to base our decision on the record, we would be compelled to affirm. For it is plain that petitioner did take an oath of allegiance to a foreign state. The Court, however, ignores the record and rests on an opinion of the Attorney General in another case (cf. Mr. Justice JACKSON concurring, McGrath v. Kristensen, 340 U.S. 162, 176, 71 S.Ct. 224, 232, 95 L.Ed. 173), saying that one who took an oath in the Army of Fascist Italy dis so under duress. We have no basis for knowing that every inducted soldier who took an oath in Mussolini's army did so under duress. For all we know, this American citizen took the oath freely and gladly. At least, he took it. If we acted in the role of Secretary of State or Attorney General, we might exercise our discretion in favor of the citizen and decide not to move against him on such a showing. But we sit not as cabinet officers but as judges to decide cases on the facts of the records before us.
1
Certiorari was granted without opposition, 343 U.S. 976, 72 S.Ct. 1071.
2
D.C. opinion not reported.
3
41 Op.Atty.Gen., Op.No.16.
4
90 U.S.App.D.C. 1121, 193 F.2d 920.
5
15 Stat. 223, 8 U.S.C. § 800, 8 U.S.C.A. § 800.
6
H.R.Doc.No.326, 59th Cong., 2d Sess., p. 23; see also 74, 79, 160 et seq.
7
34 Stat. 1228.
8
Administrative practice, when involving protections abroad, involves very different policy considerations and is not controlling here. However, while not always consistent, it seems to have settled to the rule we apply in this case. 3 Hackworth, Digest of International Law, 371; see also Nielsen, Some Vexatious Questions Relating to Nationality, 20 Col.L.Rev. 840, 954.
9
8 U.S.C., c. 11, 8 U.S.C.A. § 501 et seq.
10
See Hearings before House of Representatives Committee on Immigration and Naturalization on H.R. 9980, 76th Cong., 1st Sess., p. 32.
11
See also § 350 of Pub.L.No.414, 82d Cong., 2d Sess., 66 Stat. 163, 269, Immigration and Nationality Act, § 350, 8 U.S.C.A. § 1482.
12
The question of whether the statutory grounds under the 1940 Act exclude other acts that will amount to voluntary expatriation was reserved in Kawakita v. United States, 343 U.S. 717, 730—732, 72 S.Ct. 950, 959—960. It is not present in this case.
1
See Immigration and Nationality Act of 1952, § 349, 8 U.S.C.A. § 1481.
| 12
|
344 U.S. 157
73 S.Ct. 204
97 L.Ed. 168
LLOYD A. FRY ROOFING CO.v.WOOD et al.
No. 37.
Argued and Submitted Nov. 10, 1952.
Decided Dec. 8, 1952.
Rehearing Denied March 9, 1953.
See 345 U.S. 913, 73 S.Ct. 638.
Mr. Glenn M. Elliott, Memphis, Tenn., for petitioner.
Mr. John R. Thompson and Eugene R. Warren, Little Rock, Ark., for respondents.
Mr. Justice BLACK delivered the opinion of the Court.
1
The petitioner, Lloyd A. Fry Roofing Company, manufactures asphalt roofing products in Memphis, Tennessee, and sends them in trucks to customers in nearby states. Some of these trucks are driven by their owners who have allegedly leased them to the petitioner. Five of these driver-owners while carrying Fry's interstate shipments on Arkansas highways were arrested for having failed to obtain a permit as required of all contract carriers by § 11 of the Arkansas Motor Act.1 Petitioner brought this action in an Arkansas state court to enjoin the state's Public Service Commission from further molestation for prosecution of the drivers. The bill asserted both state and federal grounds for denying that the state law could be applied to require a permit. The state grounds alleged were: Neither petitioner Fry Roofing Company nor the truck drivers could be required to get a state permit, because the state law exempted 'private' carriers from that duty, and petitioner was such a 'private carrier'—that is, a commercial enterprise, carrying its own products exclusively in its own leased trucks operated by its own bona fide driveremployees. Since, petitioner claimed, the drivers were its bona fide employees, it necessarily followed that they need not get state permits as 'contract carriers' because they were not in the business of transporting goods for hire.2 The federal ground asserted by petitioner to prevent application of the state statute was that requiring either Fry or the drivers to get state permits would unduly burden interstate commerce in violation of the United States Constitution and would invade a field of regulation preempted by the Federal Motor Carrier Act.3
2
Answering the bill, the State Commission asked the court to dismiss it, strongly urging that petitioner's alleged lease of trucks and operation of them by its own employees were mere pretenses, a subterfuge to enable petitioner and others to evade and escape the regulatory provisions of the Arkansas Motor Act. After lengthy hearings the trial court found that the arrested drivers were in fact bona fide employees of petitioner, that the truck leases were also bona fide, and that petitioner was therefore transporting its own goods as a private carrier exempt from the state Act. For this reason the court held that the Act did not require either petitioner or its drivers to get a permit. Accordingly the Commission was enjoined as prayed. Reviewing the facts for itself the State Supreme Court found that the arrested truck drivers were not petitioner's employees, that the truck lease arrangements were shams, and that petitioner was therefore a shipper—not a carrier of any kind. In this situation the court found that the driver-owners were in reality transporting petitioner's goods as 'contract carriers' for hire, engaged in the very kind of business for which § 11 of the state Act required a permit. The court then dismissed the bill and denied a rehearing, thereby rejecting the federal questions raised. 219 Ark. 553, 244 S.W.2d 147. Certiorari was granted because of the Commerce Clause and Federal Motor Carrier Act questions. 343 U.S. 962, 72 S.Ct. 1060.
3
We are urged to set aside the findings of the State Supreme Court before passing upon the constitutional questions presented. Petitioner contends that these findings are without evidential support and that the subsidiary findings do not support the ultimate conclusion that the leases were shams. Whether rejection of these findings would place petitioner's Commerce Clause contentions in a more favorable position, we need not consider. For there is much record evidence, both oral and written, some of which tends to support petitioner's contention of good-faith arrangements and some the contrary. Some details of petitioner's conduct resemble and some details differ from patterns of conduct found by courts in other cases to have been contrived to avoid legal regulation. See, e.g., United States v. LaTuff Transfer Service, D.C., 95 F.Supp. 375, and cases there cited. There are no exceptional circumstances of any kind that would justify us in rejecting the Supreme Court's findings; they are not without factual foundation, and we accept them.
4
The finding that the arrested drivers own and operate the trucks for hire makes them contract carriers as defined in the state Act. Section 11 of that Act requires contract carriers to get a permit and outlines certain considerations the state commission may weign in granting or refusing the permit. Among these matters is the adequacy of transportation services already being performed by 'any railroad, street railway or motor carrier'. Refusal of a state certificate based on such grounds was held to be an unconstitutional obstruction of interstate commerce in Buck v. Kuykendall, 267 U.S. 307, 45 S.Ct. 324, 69 L.Ed. 623. To deny these interstate carriers an Arkansas permit for such reasons would conflict with the Buck holding.
5
Unlike the situation in the Buck case, Arkansas has not refused to grant a permit for interstate carriage of goods on state highways. It has asked these driver-owners to do nothing except apply for a permit as contract carriers are required to do by the state Act. And the State Commission here expressly disclaims any 'discretionary right to refuse to grant a permit for contract carriage where that carriage is in interstate commerce.' The state asserts no power or purpose to require the drivers to do more than register with the appropriate agency.4 Such an identification is necessary, the Commission urges, in order that it may properly apply the state's valid police, welfare, and safety regulations to motor carriers using its highways. Nor is there any showing whatever that the Commission has attempted or will attempt to attach any burdensome conditions to the grant of a permit, or conditions that would in any manner conflict with the National Motor Carrier Act or any Interstate Commerce Commission regulations issued thereunder. Moreover, the Arkansas Act imposes upon its Commission the duty of reconciling state regulation with that of the Interstate Commerce Commission, just as the Interstate Commerce Act requires federal officials to cooperate with the states and their duly authorized state officials. Here neither petitioner nor the drivers have obtained any kind of authority from the Interstate Commerce Commission. Indeed, petitioner's whole case has been built on the premise that neither it nor the drivers must get a permit from the state or the national regulatory agency. In this situation our prior cases make clear that a state can regulate so long as no undue burden is imposed on interstate commerce, and that a mere requirement for a permit is not such a burden.5 It will be time enough to consider apprehended burdensome conditions when and if the state attempts to impose and enforce them. At present we hold only that Arkansas is not powerless to require interstate motor carriers to identify themselves as users of that state's highways.
6
Affirmed.
7
Mr. Justice DOUGLAS with whom THE CHIEF JUSTICE, Mr. Justice BURTON and Mr. Justice MINTON join, dissenting.
8
Whether the driver-owners involved here are contract or private carriers is immaterial to the determination of the federal question presented. That question is whether Arkansas can require a person engaged exclusively in the interstate transportation of goods by motor carrier to obtain a certificate of necessity and convenience from Arkansas. That is precisely what Arkansas has required, as made clear by the opinion of the State Supreme Court in the instant case.
9
'We are of the opinion that the driver-owners involved in this litigation were contract carriers' as defined in the Arkansas statute and 'were therefore required to have a certificate of necessity and convenience from the Arkansas Public Service Commission.' 219 Ark. 553, 557, 244 S.W.2d 147, 149.
10
The label 'Certificate of Necessity and Convenience' is more accurate than the word 'permit,' for the Arkansas law makes the grant of permission dependent upon a consideration of the following factors:1 'the reliability and financial condition of the applicant'—his 'sense of responsibility toward the public' 'the transportation service being maintained by any railroad, street railway or motor carrier'—'the likelihood of the proposed service being permanent and continuous throughout twelve months of the year' 'the effect which such proposed transportation service may have upon existing transportation service'—'any other matters tending to show the necessity or want of necessity for granting said application.' The permit will issue if it appears that 'the applicant is fit, willing, and able' properly to perform the service and if the proposed operation 'will promote the public interest' and the policy of the Act.2
11
This statute is a regulation of interstate commerce, not a regulation of the use of Arkansas' highways. It is precisely the kind of control which the State of Washington tried to exercise over motor carriers and which was denied her by Buck v. Kuykendall, 267 U.S. 307, 45 S.Ct. 324, 69 L.Ed. 623. As Mr. Justice Brandeis, speaking for the Court in that case, said, the effect of this kind of state regulation is 'not merely to burden, but to obstruct (interstate commerce). Id., 267 U.S. at page 316, 45 S.Ct. at page 326.
12
State regulations in the interest of safety, the exaction of a fee for highway maintenance, and the like are of a different character. See South Carolina State Highway Dept. v. Barnwell Bros., 303 U.S. 177, 189, 625, 58 S.Ct. 510, 515, 82 L.Ed. 734, and cases cited. So is a requirement that an interstate carrier get a permit to do intrastate business. See Eichholz v. Public Service Commission, 306 U.S. 268, 622, 59 S.Ct. 532, 83 L.Ed. 641.
13
The certificate or permit exacted here is one authorizing an interstate contract carrier 'to engage in such business.' Until today no state could impose any such condition on one engaged exclusively in interstate commerce. Until today such a certificate was the concern solely of the Interstate Commerce Commission. Congress gave the Commission authority to regulate interstate contract carriers. 49 U.S.C. § 304(a)(2), 49 U.S.C.A. § 304(a)(2). Congress made it mandatory for them to obtain a permit to do business. Id., § 309. It gave the Commission broad powers of investigation over these carriers, id., § 304(c), provided for injunctions against violations, id., § 322(b), and imposed criminal sanctions. Id., § 322(a). There is no phase of the operation, which Arkansas in this action seeks to regulate, that Congress has left untouched. It is the Interstate Commerce Commission that must determine whether this leasing operation is bona fide or a sham, whether the carriers are private interstate carriers requiring no permit or interstate contract carriers requiring one. Congress in other words has preempted the field, precluding both inconsistent and overlapping state regulations.3 See Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581; Hill v. State of Florida ex rel. Watson, 325 U.S. 538, 65 S.Ct. 1373, 89 L.Ed. 1782; Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 67 S.Ct. 1146, 91 L.Ed. 1447; Bethlehem Steel Co. v. New York State Labor Relations Board, 330 U.S. 767, 67 S.Ct. 1026, 91 L.Ed. 1234; La Crosse Tel. Corp. v. Wisconsin Employment Relations Board, 336 U.S. 18, 69 S.Ct. 379, 93 L.Ed. 463; Plankinton Packing Co. v. Wisconsin Employment Relations Board, 338 U.S. 953, 70 S.Ct. 491, 94 L.Ed. 588; International Union of United Automobile, Aircraft and Agricultural Implement Workers v. O'Brien, 339 U.S. 454, 70 S.Ct. 781, 94 L.Ed. 978.
1
'No person shall engage in the business of a contract carrier by motor vehicle over any public highway in this State unless there is in force with respect to such carrier a permit issued by the Commission, authorizing such persons to engage in such business. * * *' Ark.Acts 1941, No. 367 at 937, 947—948.
2
The state Act's definition of a contract carrier is:
'The term 'contract carrier by motor vehicle's means any person, not a common carrier included under Paragraph 7, Section 5(a) of this Act, who or which, under individual contracts or agreements, and whether directly or indirectly or by a lease of equipment or franchise rights, or any other arrangement, transports passengers or property by motor vehicle for compensation.' Ark.Acts 1941, No. 367, § 5(a) 8. Compare definition in the United States Motor Carrier Act, Part II of the Interstate Commerce Act, 49 U.S.C. § 303(15), 49 U.S.C.A. § 303(15).
3
49 Stat. 543, as amended, 54 Stat. 919, 49 U.S.C. § 301 et seq., 49 U.S.C.A. § 301 et seq. The federal Act contention was not specifically referred to in the original bill, but was urged in, considered and rejected by the State Supreme Court.
4
'It appeared that, while the act calls the certificate one of 'public convenience and necessity,' the commission had recognized, before this suit was begun, that, * * * it had no discretion where the carrier was engaged exclusively in interstate commerce, and was willing to grant to plaintiffs a certificate upon application and compliance with other provisions of the law.' Clark v. Poor, 274 U.S. 554, 556, 47 S.Ct. 702, 71 L.Ed. 1199. In the Clark case this Court affirmed an order dismissing the bill. See Columbia Terminals Co. v. Lambert, D.C., 30 F.Supp. 28, 32, and 309 U.S. 620, 60 S.Ct. 471, 84 L.Ed. 983.
5
In Columbia Terminals Co. v. Lambert, 30 F.Supp. 28, 29, the District Court upheld a Missouri statute reading: 'It is hereby declared unlawful for any motor carrier * * * to use any of the public highways of this state for the transportation of persons or property, or both, in interstate commerce without first having obtained from the commission a permit so to do. * * *' Buck v. Kuykendall, 267 U.S. 307, 45 S.Ct. 324, 69 L.Ed. 623, was held not to require the statute's invalidation, since Missouri had not refused to grant a permit on the ground that the state had power to say what interstate commerce would benefit the state and what would not. Agreeing with this constitutional holding, we ordered the complaint dismissed. 309 U.S. 620, 60 S.Ct. 471, 84 L.Ed. 983. See also Eichholz v. Public Service Comm., 306 U.S. 268, 273—274, 622, 59 S.Ct. 532, 534—535, 83 L.Ed. 641; H. P. Welch Co. v. State of New Hampshire 306 U.S. 79, 84, 85, 59 S.Ct. 438, 440, 441, 83 L.Ed. 550; Maurer v. Hamilton, 309 U.S. 598, 60 S.Ct. 726, 84 L.Ed. 969, affirming 336 Pa. 17, 7 A.2d 466; McDonald v. Thompson, 305 U.S. 263, 59 S.Ct. 176, 83 L.Ed. 164, affirming 5 Cir., 95 F.2d 937; South Carolina State Highway Dept. v. Barnwell Bros., Inc., 303 U.S. 177, 625, 58 S.Ct. 510, 82 L.Ed. 734. Cf. Buck v. Kuykendall, 267 U.S. 307, 45 S.Ct. 324, 69 L.Ed. 623, and H. P. Hood & Sons, Inc., v. Du Mond, 336 U.S. 525, 538, 69 S.Ct. 657, 665, 43 L.Ed. 865.
1
The relevant parts of § 11 of Act 367, Ark.L.1941, pp. 947 949, are as follows:
'(a) No person shall engage in the business of a contract carrier by motor vehicle over any public highway in this State unless there
is in force with respect to such carrier a permit issued by the Commission, authorizing such persons to engage in such business.
'(c) Subject to this Act a permit shall be issued to any qualified applicant therefor authorizing in whole or in part the operations covered by the application, if it appears from the application or from any hearing held thereon, that the applicant is fit, willing, and able to properly perform the service of a contract carrier by motor vehicle and to conform to the provisions of this Act and the lawful requirements, rules and regulations of the Commission, and the proposed operation, to the extent authorized by the permit, will promote the public interest and the policy declared in Section Two (2) of this Act; otherwise such application shall be denied.
'(e) In granting applications for permits, the Commission shall take into consideration the reliability and financial condition of the applicant and his sense of responsibility toward the public; the transportation service being maintained by any railroad, street railway or motor carrier; the likelihood of the proposed service being permanent and continuous throughout twelve months of the year, and the effect which such proposed transportation service may have upon existing transportation service; and any other matters tending to show the necessity or want of necessity for granting said application.
'(f) the Commission shall specify in the permit the business of the contract carrier covered thereby and the scope thereof and shall attach to it, at the time of issuance, and from time to time thereafter, such reasonable terms, conditions, and limitations consistent with the character of the holder as a contract carrier as are necessary to carry out, with respect to the operations of such carrier, the requirements established by the Commission under this Act; provided, however, that no terms, conditions, or limitations shall restrict the right of the carrier to substitute or add contracts within the scope of the permit, or to add to his or its equipment facilities, within the scope of the permit, as the development of the business and the demands of the public may require.'
2
§ 11, note 1, supra.
3
Columbia Terminals Co. v. Lambert, D.C., 30 F.Supp. 28, whose ruling we sustained, 309 U.S. 620, 60 S.Ct. 471, 84 L.Ed. 983, is not in point. The Interstate Commerce Commission had ruled in that case that the particular operations there involved were not covered by the federal Act. See 30 F.Supp., at page 30.
| 78
|
344 U.S. 178
73 S.Ct. 196
97 L.Ed. 204
MONTGOMERY BLDG. & CONST. TRADES COUNCIL et al.v.LEDBETTER ERECTION CO., Inc.
No. 43.
Argued Nov. 13, 1952.
Decided Dec. 8, 1952.
Mr. Herbert S. Thatcher, Washington, D.C., for petitioners.
Mr. Jack Crenshaw, Montgomery, Ala., for respondent.
Mr. Mozart G. Ratner, Washington, D.C., for N.L.R.B., amicus curiae by special leave of Court.
Mr. Justice MINTON delivered the opinion of the Court.
1
The respondent filed a bill in equity in the Circuit Court of Montgomery County, Alabama, to enjoin certain picketing activities, wholly peaceful, carried on by the petitioners, labor organizations. Upon the sworn bill and without notice, the court issued forthwith a 'Temporary Writ of Injunction.' The petitioners appeared and filed an answer and a motion to dissolve the injunction on numerous grounds. Subsequently, the petitioners withdrew their answer and most of the grounds assigned for dissolution of the injunction and filed new grounds therefor. The motion to dissolve was denied, and from this order of the court, the petitioners appealed to the Supreme Court of Alabama which affirmed the order of the trial court. 256 Ala. 678, 57 So.2d 112, rehearing denied, 256 Ala. 689, 57 So.2d 121. Certiorari was sought here and granted, 343 U.S. 962, 72 S.Ct. 1061.
2
At the very threshold, we are presented with a question of jurisdiction. This Court may grant certiorari from a judgment or decree of the Supreme Court of Alabama, the highest court in the State, only if the judgment or decree is final. 28 U.S.C. § 1257, 28 U.S.C.A. § 1257. Was this a final judgment or decree? From the earliest days, this Court has refused to accept jurisdiction of interlocutory decrees, such as is involved in this case. In Gibbons v. Ogden, 6 Wheat. 448, 5 L.Ed. 302, the first case presenting this issue to this Court, an injunction had been granted by a Chancery Court of the State of New York. The defendant answered and moved to dissolve the injunction. The court denied the motion to dissolve, and the defendant appealed to the Court for the Trial of Impeachments and Correction of Errors which affirmed. The appeal to this Court was dismissed because there was no final decree in the court of last resort for this Court to review.
3
The provision of § 1257 that only 'Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court * * *' has been carried in almost identical language since the Judiciary Act of 1789, 1 Stat. 85, § 25.
4
'This requirement is not one of those technicalities to be easily scorned. It is an important factor in the smooth working of our federal system.' Radio Station WOW v. Johnson, 326 U.S. 120, 124, 65 S.Ct. 1475, 1478, 89 L.Ed. 2092.
5
The distinction between a preliminary or temporary injunction and a final or permanent injunction was elementary in the law of equity. The classical concept was at once recognized and applied in Gibbons v. Ogden, supra. There is no room here for interpretation. The rule remains unchanged.
6
True, as long as a temporary injunction is in force it may be as effective as a permanent injunction, and for that reason appeals from interlocutory judgments have been authorized by state legislatures and Congress. But such authorization does not give interlocutory judgments the aspect of finality here, even though we may have inadvertently granted certiorari. Baldwin Co. v. R. S. Howard Co., 256 U.S. 35, 40, 41 S.Ct. 405, 407, 65 L.Ed. 816.
7
It is argued that if this is not held to be a final decree or judgment and decided now, it may never be decided, because to await the outcome of the final hearing is to moot the question and to frustrate the picketing. However appealing such argument may be, it does not warrant us in enlarging our jurisdiction. Only Congress may do that. Furthermore, the interlocutory decree could have been readily converted into a final decree, and the appeal could have proceeded without question as to jurisdiction just as effectively and expeditiously as the appeal from the interlocutory injunction was pursued in this case.
8
Since there was no final judgment of the Supreme Court of Alabama for review, the writ of certiorari must be dismissed as improvidently granted. It is so ordered.
9
Petition for certiorari dismissed.
10
Mr. Justice DOUGLAS with whom Mr. Justice BLACK concurs, dissenting.
11
The question presented is the power of the state court to issue a temporary injunction in this kind of labor dispute. If petitioners had sought mandamus or another appropriate state writ directed against the judge who issued the temporary injunction, I should have no doubt that it would be a final judgment which we would review. See Bandini Petroleum Co. v. Superior Court, 284 U.S. 8, 14, 52 S.Ct. 103, 105, 76 L.Ed. 136. Cf. Rescue Army v. Municipal Court, 331 U.S. 549, 565, 67 S.Ct. 1409, 1417, 91 L.Ed. 1666. I see no difference of substance between that case and this. The mischief of temporary injunctions in labor controversies is well known. It is done when the interlocutory order is issued. The damage is often irreparable. The assertion by the state court of power to act in an interlocutory way is final. Whether it has that power may be determined without reference to any future proceedings which may be taken. Unless the rule of finality is to be purely mechanical, which to date it has not been, see Radio Station WOW v. Johnson, 326 U.S. 120, 124, 65 S.Ct. 1475, 1478, 89 L.Ed. 2092, we should determine now whether the National Labor Relations Act permits a state court to interfere with a labor controversy in a way, which though interim in form, irretrievably alters the status of the dispute or in fact settles it.*
*
This 'practical' rather than 'technical' construction is as necessary here as it is in cases involving appeals from 'final decisions' in the federal system. See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545—546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528.
| 89
|
344 U.S. 167
73 S.Ct. 191
97 L.Ed. 186
ALISONv.UNITED STATES. UNITED STATES v. STEVENSON-CHISLETT, Inc.
Nos. 79, 80.
Argued Nov. 12, 1952.
Decided Dec. 8, 1952.
Mr. Karl E. Weise, Pittsburgh, Pa., for Alison.
Mr. David B. Buerger, Pittsburgh, Pa., for Stevenson-Chislett, Ins.
Mr. Hilbert P. Zarky, Washington, D.C., for the United States.
Mr. Justice BLACK delivered the opinion of the Court.
1
The questions in these two income tax cases are so much alike that they can be treated in one opinion. Both taxpayers had moneys embezzled by trusted agents and employees. As usual, the defalcations had been going on for many years before they were discovered. On discovery, efforts were made immediately to identify the takers and fix the dates and amounts of the thefts. In the Alison case, No. 79, the books revealed the thief and the precise amounts taken each year from 1931 to 1940. In No. 80, Stevenson-Chislett, Inc., the cover-up had been so successful that painstaking investigation failed to reveal who took the funds or the time when the unascertained person or persons took them. Each taxpayer claimed a tax deduction for the year the losses were discovered and their amounts ascertained. The Government objected, claiming that the deduction should have been taken in each of the prior years during which the moneys were being surreptitiously taken. In the Stevenson-Chislett case, the District Court held that the uncertain circumstances of the embezzlement entitled the taxpayer to take its losses the year the loss was discovered and the amount ascertained. 98 F.Supp 252. The District Judge decided the other way in the Alison case and denied her declarations. D.C., 97 F.Supp. 959. His holding, however, was not in accord with his own views, but was compelled, he thought, by the Third Circuit's decision in First National Bank of Sharon, Pa. v. Heiner, 66 F.2d 925. The Court of Appeals for the Third Circuit certified to us the question of deductibility in both cases. Pursuant to 28 U.S.C. § 1254(3), 28 U.S.C.A. § 1254(3), we ordered the complete records sent up so that we might decide the entire matters in controversy.
2
Internal Revenue Code, § 23(e) and (f), 26 U.S.C.A. § 23(e, f), authorize deductions for '* * * losses sustained during the taxable year * * *.' The Government reads this section as requiring a taxpayer to take a deduction for loss from embezzlement in the year in which the theft occurs, even though inability to discover in time might completely deprive the taxpayer of the benefit of this statutory deduction. Only at the time the money is stolen, so it is argued, is a loss 'sustained.' But Treasury practice itself belies this rigid construction. For more than thirty years the Regulations have provided that 'A loss from theft or embezzlement occurring in one year and discovered in another is ordinarily deductible for the year in which sustained.' 26 CFR § 29.43—2. (Emphasis supplied.) Information contained in a letter from the Commissioner attached as an appendix to the Government's brief cites many instances in which the Treasury has allowed deductions for embezzlement losses in years subsequent to those in which the thefts occurred. Apparently the Department has felt constrained to do this in order to prevent hardships and injustice. These have been departures from the 'ordinary' rule of attributing embezzlement losses to the year of theft.
3
This Treasury practice evidently stems at least in part from the special nature of the crime of embezzlement. Its essence is secrecy. Taxpayers are usually well aware of all the circumstances of financial losses for which tax deductions are allowed. Not so when a trusted adviser or employee steals. For years his crime may be known only to himself. He may take money planning to return it and he may return it before there is discovery. Furthermore, the terms embezzlement and loss are not synonymous. The theft occurs, but whether there is a loss may remain uncertain. One whose funds have been embezzled may pursue the wrongdoer and recover his property wholly or in part. See Commissioner of Internal Revenue v. Wilcox, 327 U.S. 404, 66 S.Ct. 546, 90 L.Ed. 752. Events in the Alison case show the practical value of this right of recovery. A substantial proportion of the embezzled funds was recovered in 1941, ten years after the first embezzlement occurred. This recovery alone is ample refutation of the view that a loss is inevitably 'sustained' at the very time an embezzlement is committed.
4
Whether and when a deductible loss results from an embezzlement is a factual question, a practical one to be decided according to surrounding circumstances. See Boehm v. Commissioner, 326 U.S. 287, 66 S.Ct. 120, 90 L.Ed. 78. An inflexible rule is not needed; the statute does not compel it. For years the Treasury has administered the tax law under regulations saying that deductions shall 'ordinarily' be taken in the year of embezzlement. Ordinarily does not mean always.
5
We hold that the special factual circumstances found by the District Courts in both these cases justify deductions under I.R.C. § 23(e) and (f) and the long-standing Treasury Regulations applicable to embezzlement losses. See Boston Consolidated Gas Co. v. Commissioner, 1 Cir., 128 F.2d 473; Gwinn Bros. & Co. v. Commissioner, 7 T.C. 320. Accordingly, the judgment in No. 79 is reversed and the judgment in No. 80 is affirmed.
6
It is so ordered.
7
Judgment in No. 79 reversed and judgment in No. 80 affirmed.
8
Mr. Justice DOUGLAS and Mr. Justice BURTON dissent.
| 1112
|
344 U.S. 149
73 S.Ct. 200
97 L.Ed. 157
UNITED STATESv.CALTEX (PHILIPPINES), Inc. et al.
No. 16.
Argued Oct. 20, 1952.
Decided Dec. 8, 1952.
Rehearing Denied Jan. 12, 1953.
See 344 U.S. 919, 73 S.Ct. 345.
Mr. Holmes Baldridge, Asst. Atty. Gen., Washington, D.C., for petitioner.
Mr. Albert R. Connelly, New York City, for respondents Shell Co. of Philippine Islands, Ltd., and Standard-Vacuum Oil Co.
Mr. Leo T. Kissam, New York City, for respondent Caltex (Philippines), Inc.
Mr. Chief Justice VINSON delivered the opinion of the Court.
1
Each of the respondent oil companies owned terminal facilities in the Pandacan district of Manila at the time of the Japanese attack upon Pearl Harbor. These were used to receive, handle and store petroleum products from incoming ships and to release them for further distribution throughout the Philippine Islands. Wharves, rail and automotive equipment, pumps, pipe lines, storage tanks, and warehouses were included in the property on hand at the outbreak of the war, as well as a normal supply of petroleum products.
2
News of the Pearl Harbor attack reached Manila early in the morning of December 8, 1941. On the same day, enemy air attacks were mounted against our forces in the Philippines, and thereafter the enemy launched his amphibious assault.
3
On December 12, 1941, the United States Army, through its Chief Quartermaster, stationed a control officer at the terminals. Operations continued at respondents' plants, but distribution of the petroleum products for civilian use was severely restricted. A major share of the existing supplies was requisitioned by the Army.
4
The military situation in the Philippines grew worse. In the face of the Japanese advance, the Commanding General on December 23, 1941, ordered the withdrawal of all troops on Luzon to the Bataan Peninsula. On December 25, 1941, he declared Manila to be an open city. On that same day, the Chief Engineer on the staff of the Commanding General addressed to each of the oil companies letters stating that the Pandacan oil deposts 'are requisitioned by the U.S. Army.' The letters further stated: 'Any action deemed necessary for the destruction of this property will be handled by the U.S. Army.' An engineer in the employ of one of the companies was commissioned a first lieutenant in the Army Corps of Engineers to facilitate this design.
5
On December 26, he received orders to prepare the facilities for demolition. On December 27, 1941, while enemy planes were bombing the area, this officer met with representatives of the companies. The orders of the Chief Engineer had been transmitted to the companies. Letters from the Deputy Chief of Staff, by command of General MacArthur, also had been sent to each of the oil companies, directing the destruction of all remaining petroleum products and the vital parts of the plants. Plans were laid to carry out these instructions, to expedite the removal of products which might still be of use to the troops in the field, and to lay a demolition network about the terminals. The representatives of Caltex were given, at their insistence, a penciled receipt for all the terminal facilities and stocks of Caltex.
6
At 5:40 p.m., December 31, 1941, while Japanese troops were entering Manila, Army personnel completed a successful demolition. All unused petroleum products were destroyed, and the factilities were rendered useless to the enemy. The enemy was deprived of a valuable logistic weapon.
7
After the war, respondents demanded compensation for all of the property which had been used or destroyed by the Army. The Government paid for the petroleum stocks and transportation equipment which were either used or destroyed by the Army, but it refused to compensate respondents for the destruction of the Pandacan terminal facilities. Claiming a constitutional right under the Fifth Amendment1 to just compensation for these terminal facilities, respondents sued in the Court of Claims. Recovery was allowed. We granted certiorari to review this judgment. 343 U.S. 955, 72 S.Ct. 1050.
8
As reflected in the findings of the Court of Claims, there were two rather distinct phases of Army operations in the Pandacan District in Cecember 1941. While the military exercised considerable control over the business operations of respondents' terminals during the period between December 12 and December 26, there was not, according to the findings below, an assumption of actual physical or proprietary dominion over them during this period.2 Bound by these findings, respondents do not now question the holding of the Court of Claims that prior to December 27 there was no seizure for which just compensation must be paid.
9
Accordingly, it is the legal significance of the events that occurred between December 27 and December 31 which concerns us. Respondents concede that the Army had a right to destroy the installations. But they insist that the destruction created a right in themselves to exact fair compensation from the United States for what was destroyed.
10
The argument draws heavily from statements by this Court in Mitchell v. Harmony, 1852, 13 How. 115, 14 L.Ed. 75, and United States v. Russell, 1871, 13 Wall. 623, 20 L.Ed. 474. We agree that the opinions lend some support to respondents' view.3 But the language in those two cases is far broader than the holdings. Both cases involved equipment which had been impressed by the Army for subsequent use by the Army. In neither was the Army's purpose limited, as it was in this case, to the sole objective of destroying property of strategic value to prevent the enemy from using it to wage war the more successfully.
11
A close reading of the Mitchell and Russell cases shows that they are not precedent to establish a compensable taking in this case. Nor do those cases exhaust all that has been said by this Court on the subject. In United States v. Pacific R. Co., 1887, 120 U.S. 227, 7 S.Ct. 490, 30 L.Ed. 634, Justice Field, speaking for a unanimous Court, discussed the question at length. That case involved bridges which had been destroyed during the war between the states by a retreating Northern Army to impede the advance of the Confederate Army.4 Though the point was not directly involved, the Court raised the question of whether this act constituted a compensable taking by the United States and answered it in the negative:
12
'The destruction or injury of private property in battle, or in the bombardment of cities and towns, and in many other ways in the war, had to be borne by the sufferers alone, as one of its consequences. Whatever would embarrass or impede the advance of the enemy, as the breaking up of roads, or the burning of bridges, or would cripple and defeat him, as destroying his means of subsistence, were lawfully ordered by the commanding general. Indeed, it was his imperative duty to direct their destruction. The necessities of the war called for and justified this. The safety of the state in such cases overrides all considerations of private loss.'5
13
It may be true that this language also went beyond the precise questions at issue. But the principles expressed were neither novel nor startling, for the common law had long recognized that in times of imminent peril—such as when fire threatened a whole community—the sovereign could, with immunity, destroy the property of a few that the property of many and the lives of many more could be saved.6 And what was said in the Pacific Railroad case was later made the basis for the holding in Juragua Iron Co. v. United States, 1909, 212 U.S. 297, 29 S.Ct. 385, 53 L.Ed. 520, where recovery was denied to the owners of a factory which had been destroyed by American soldiers in the field in Cuba because it was thought that the structure housed the germs of a contagious disease.
14
Therefore, whether or not the principle laid down by Justice Field was dictum when he enunicated it, we hold that it is law today. In our view, it must govern in this case. Respondents and the majority of the Court of Claims, arguing to the contrary, have placed great emphasis on the fact that the Army exercised 'deliberation' in singling out this property, in 'requisitioning' it from its owners, and in exercising 'control' over it before devastating it. We need not labor over these labels; it may be that they describe adequately what was done, but they do not show the legal consequences of what was done. The 'requisition' involved in this case was no more than an order to evacuate the premises which were slated for demolition. The 'deliberation' behind the order was no more than a design to prevent the enemy from realizing any stragtegic value from an area which he was soon to capture.
15
Had the Army hesitated, had the facilities only been destroyed after retreat, respondents would certainly have no claims to compensation. The Army did not hesitate. It is doubtful that any concern over the legal niceties of the situation entered into the decision to destroy the plants promptly while there was yet time to destroy them thoroughly.7 Nor do we think it legally significant that the destruction was effected prior to withdrawal. The short of the matter is that this property, due to the fortunes of war, had become a potential weapon of great significance to the invader. It was destroyed, not appropriated for subsequent use. It was destroyed that the United States might better and sooner destroy the enemy.
16
The terse language of the Fifth Amendment is no comprehensive promise that the United States will make whole all who suffer from every ravage and burden of war. This Court has long recognized that in wartime many losses must be attributed solely to the fortunes of war, and not to the sovereign.8 No rigid rules can be laid down to distinguish compensable losses from noncompensable losses. Each case must be judged on its own facts. But the general principles laid down in the Pacific Railroad case seem especially applicable here. Viewed realistically, then, the destruction of respondents' terminals by a trained team of engineers in the face of their impending seizure by the enemy was no different than the destruction of the bridges in the Pacific Railroad case. Adhering to the principles of that case, we conclude that the court below erred in holding that respondents have a constitutional right to compensation on the claims presented to this Court.
17
Reversed.
18
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.
19
I have no doubt that the military had authority to select this particular property for destruction. But whatever the weight of authority may be, I believe that the Fifth Amendment requires compensation for the taking. The property was destroyed, not because it was in the nature of a public nuisance, but because its destruction was deemed necessary to help win the war. It was as clearly appropriated to that end as animals, food, and supplies requisitioned for the defense effort. As the Court says, the destruction of this property deprived the enemy of a valuable logistic weapon.
20
It seems to me that the guiding principle should be this: Whenever the government determines that one person's property whatever it may be—is essential to the war effort and appropriates it for the common good, the public purse rather than the individual, shold bear the loss.
1
'* * * nor shall private property be taken for public use, without just compensation.'
2
At one point shortly after the outbreak of the war the Army contemplated leasing respondents' facilities. But this plan was never put into effect. Respondents continued to operate the plants themselves up to December 26, 1941.
3
In the Russell case, supra, the Court said, 13 Wall. at pages 627—628:
'Extraordinary and unforseen occasions arise, however, beyond all doubt, in cases of extreme necessity in time of war or of immediate and impending public danger, in which private property may be impressed into the public service, or may be seized and appropriated to the public use, or may even be destroyed without the consent of the owner * * *. Exigencies of the kind do arise in time of war or impending public danger, but it is the emergency, as was said by a great magistrate, that gives the right, and it is clear that the emergency must be shown to exist before the taking can be justified. Such a justification may be shown, and when shown the rule is well settled that the officer taking private property for such a purpose, if the emergency is fully proved, is not a trespasser, and that the government is bound to make full compensation to the owner.'
4
The narrow issue in the case was whether, after the Army rebuilt the bridges it had previously destroyed, the Army could charge for the expense of the rebuilding. On this issue the Court held for the railroad.
5
120 U.S. at page 234, 7 S.Ct. at page 493.
6
For earlier cases expressing such principles see, e.g., Bowditch v. Boston, 1879, 101 U.S. 16, 18—19, 25 L.Ed. 980; Respublica v. Sparhawk, 1788, 1 Dall. 357, 1 L.Ed. 174; Parham v. Justices, 1850, 9 Ga. 341, 348—349. See also 2 Kent's Commentaries (14th ed.) 338.
7
Cf. Respublica v. Sparhawk, supra, where the following appears, 1 Dall. at page 362:
'We find, indeed, a memorable instance of folly recorded in the 3 vol. of Clarendon's History, where it is mentioned, that the Lord Mayor of London, in 1666, when that city was on fire, would not give directions for, or consent to, the pulling down forty wooden houses, or to removing the furniture, &c. belonging to the lawyersof the temple, then on the circuit, for fear he should be answerable for a trespass; and in consequence of this conduct, half that great city was burnt.'
8
Lichter v. United States, 1948, 334 U.S. 742, 787—788, 68 S.Ct. 1294, 1317—1318, 92 L.Ed. 1694; Bowles v. Willingham, 1943, 321 U.S. 503, 517—519, 64 S.Ct. 641, 648—649, 88 L.Ed. 892; Omnia Commercial Co. v. United States, 1923, 261 U.S. 502, 43 S.Ct. 437, 67 L.Ed. 773.
| 34
|
344 U.S. 174
73 S.Ct. 189
97 L.Ed. 200
UNITED STATESv.CARDIFF.
No. 27.
Argued Nov. 17, 1952.
Decided Dec. 8, 1952.
Mr. James L. Morrisson, Washington, D.C., for petitioner.
Mr. John Lichty, Portland, Or., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Respondent was convicted of violating § 301(f) of the Federal Food, Drug, and Cosmetic Act, 52 Stat. 1040, 21 U.S.C. § 331(f), 21 U.S.C.A. § 331(f). That section prohibits 'The refusal to permit entry or inspection as authorized by section 704.'1 Section 704, 21 U.S.C.A. § 374, authorizes the federal officers or employees 'after first making request and obtaining permission of the owner, operator, or custodian' of the plant or factory 'to enter' and 'to inspect' the establishment, equipment, materials and the like 'at reasonable times'.2
2
Respondent is president of a corporation which processes apples at Yakima, Washington, for shipment in interstate commerce. Authorized agents applied to respondent for permission to enter and inspect his factory at reasonable hours. He refused permission, and it was that refusal which was the basis of the information filed against him and under which he was convicted and fined. D.C., 95 F.Supp. 206. The Court of Appeals reversed, holding that § 301(f), when read with § 704, prohibits a refusal to permit entry and inspection only if such permission has previously been granted. 9 Cir., 194 F.2d 686. The case is here on certiorari.
3
The Department of Justice urges us to read § 301(f) as prohibiting a refusal to permit entry or inspection at any reasonable time. It argues that that construction is needed if the Act is to have real sanctions and if the benign purposes of the Act are to be realized. It points out that factory inspection has become the primary investigative device for enforcement of this law, that it is from factory inspections that about 80 percent of the violations are discovered, that the small force of inspectors makes factory inspection, rather than random sampling of finished goods, the only effective method of enforcing the Act.
4
All that the Department says may be true. But it does not enable us to make sense out of the statute. Nowhere does the Act say that a factory manager must allow entry and inspection at a reasonable hour. Section 704 makes entry and inspection condition on 'making request and obtaining permission'. It is that entry and inspection which § 301(f) backs with a sanction. It would seem therefore on the face of the statute that the Act prohibits the refusal to permit inspection only if permission has been previously granted. Under that view the Act makes illegal the revocation of permission once given, not the failure to give permission. But that view would breed a host of problems. Would revocation of permission once given carry the criminal penalty no matter how long ago it was granted and no matter if it had no relation to the inspection demanded? Or must the permission granted and revoked relate to the demand for inspection on which the prosecution is based? Those uncertainties make that construction pregnant with danger for the regulated business. The alternative construction pressed on us is equally treacherous because it gives conflicting commands. It makes inspection dependent on consent and makes refusal to allow inspection a crime. However we read § 301(f) we think it is not fair warning, cf. United States v. Weitzel, 246 U.S. 533, 38 S.Ct. 381, 62 L.Ed. 872; McBoyle v. United States, 283 U.S. 25, 51 S.Ct. 340, 75 L.Ed. 816, to the factory manager that if he fails to give consent, he is a criminal. The vice of vagueness in criminal statutes is the treachery they conceal either in determining what persons are included or what acts are prohibited. Words which are vague and fluid, cf. United States v. L. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516, may be as much of a trap for the innocent as the ancient laws of Caligula. We cannot sanction taking a man by the heels for refusing to grant the permission which this Act on its face apparently gave him the right to withhold. That would be making an act criminal without fair and effective notice. Cf. Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066.
5
Affirmed.
6
Mr. Justice JACKSON concurs in the result.
7
Mr. Justice BURTON dissents.
1
The violation is made a misdemeanor by 21 U.S.C. § 333, 21 U.S.C.A. § 333.
2
Section 704 reads as follows: 'For purposes of enforcement of this act, officers or employees duly designated by the Administrator, after first making request and obtaining permission of the owner, operator, or custodian thereof, are authorized (1) to enter, at reasonable times, any factory, warehouse, or establishment in which food, drugs, devices, or cosmetics are manufactured, processed, packed, or held, for introduction into interstate commerce or are held after such introduction, or to enter any vehicle being used to transport or hold such food, drugs, devices, or cosmetics in interstate commerce; and (2) to inspect, at reasonable times, such factory, warehouse, establishment, or vehicle and all pertinent equipment, finished and unfinished materials, containers, and labeling therein.'
| 34
|
344 U.S. 143
73 S.Ct. 193
97 L.Ed. 153
DIXONv.DUFFY.
No. 4.
Argued Oct. 16, 1952.
Decided Dec. 8, 1952.
Mr. Franklin C. Stark, Oakland, Cal., for petitioner.
Mr. Clarence A. Linn, San Francisco, Cal., for respondent.
Mr. Chief Justice VINSON delivered the opinion of the Court.
1
This case originated on October 21, 1950, when petitioner, a prisoner in San Quentin, filed an application for a writ of habeas corpus in the Supreme Court of California. That court, summarily, but with two dissents, denied the application. To review this decision, petitioner applied to this Court for certiorari. The Court granted the petition, 341 U.S. 938, 71 S.Ct. 995, 95 L.Ed. 1366, and thereafter appointed counsel to represent the petitioner. 342 U.S. 805, 72 S.Ct. 32.
2
The Attorney General of California appeared for respondent. At the bar of this Court, he argued that the judgment of the Supreme Court of California rested on an adequate nonfederal ground. Admitting that habeas corpus is ordinarily an available means to California prisoners to challenge the constitutionality of the proceedings which resulted in the incarceration, the Attorney General told us that the writ was unavailable in this particular case, to this particular petitioner becaue he could have and should have presented his federal claim in an appeal from his original conviction. Counsel for petitioner vigorously opposed this contention, insisting that habeas corpus was an available remedy under California law, that the federal question was properly before the court.
3
This Court, of course, does not sit to determine matters of state law; nor is it the appropriate forum to resolve the argument raised by the earnest objections of the Attorney General of California.
4
Accordingly, we followed our precedents.1 We continued the cause 'for such period' as would 'enable counsel for petitioner to secure a determination from the Supreme Court of California as to whether the judgment herein was intended to rest on an adequate independent state ground or whether decision of the federal claim was necessary to the judgment rendered.' 342 U.S. 33, 34, 72 S.Ct. 10, 11. (Emphasis supplied.)
5
Counsel for petitioner, in December 1951, duly filed in the Supreme Court of California a 'Petition for Determination of Basis of Judgment' which requested an expression by that court on the issue raised by our order. Subsequently, the Clerk of this Court received a letter from the Clerk of the Supreme Court of California relative to this question. But we received no official determination of the issue from the Supreme Court of California.
6
We could not regard the letter from the Clerk of the Supreme Court of California as a 'sufficient 'determination' of the question raised in our order of November 5, 1951.' Therefore, on May 12, 1952, we 'further continued' the cause on our docket to enable counsel for petitioner to secure from the Supreme Court of California its official determination as requested by our earlier order. 343 U.S. 393, 72 S.Ct. 859.
7
Though some months have now elapsed, we still have received no advice from the Supreme Court of California. We are informed, however, that the California court advised petitioner's counsel informally that it doubted its jurisdiction to render such a determination. And, although counsel subsequently submitted briefs to the contrary, the California court again informed counsel, through its Clerk, that it was powerless, for want of jurisdiction, to issue any further official expression on the case. It appears, then, that so long as this cause continues on our docket, counsel cannot procure that which we asked him to procure.
8
We granted certiorari in this case 'because of a serious claim that petitioner had been deprived of his rights under the Federal Constitution.' 342 U.S. 33, 72 S.Ct. 11. This Court, alone, is the final arbiter of such a claim, and our grant of certiorari should entitle petitioner to the chance to have the matter resolved by this Court—provided that the state judgment was not based on an adequate state ground. If the state judgment was based on an adequate state ground, the court, of course, would be without jurisdiction to pass upon the federal question. Doubt has since arisen that such jurisdiction exists. These circumstances should not now act to deprive petitioner of his day in this Court,2 but they do require that we take scrupulous care, as we have so often done before,3 to determine our jurisdiction. This involves further delay, and in this case further delay is regrettable. But delay is necessary unless we are to resolve the jurisdictional issue by simply assuming the nonexistence of an adequate state ground though in fact one may exist.
9
To the end that the doubt in this case may be resolved, we vacate the judgment of the Supreme Court of California and remand the cause for further proceedings. A new judgment may be entered, and petitioner also may be informed by an official determination from the Supreme Court of California whether or not that judgment rests on an adequate state ground.4 So ordered.
10
Judgment vacated and cause remanded with directions.
11
Mr. Justice JACKSON, dissenting.
12
Both the wisdom and the legality of this policy toward the highest court of a state appear dubious to me. What we are doing, in essence, is to vacate a state court judgment, not becaue it is found to be inconsistent with federal law, but because the state court has not told us, with an acceptable degree of formality, what reasons led to rendering it.
13
This Court has blazed the way for the practice of dispensing with opinions in denying petitions for discretionary orders, such as certiorari and motions for leave to file petitions for habeas corpus. Unless we mean to impose on state courts a burden we are unwilling to assume ourselves, we should not vacate this state judgment. Doubt of our jurisdiction is no justification for exercising it; quite the contrary is the rule.
14
Those few of the cases cited by the Court in which this procedure was followed are not persuasive. There was no examination of the Court's power to vacate, and the results do not encourage its repetition. In two cases, the judgment vacated was simply reinstated by the State Supreme Court and the litigants were never heard from again. Compare State of Minnesota v. National Tea Co., 309 U.S. 551, 60 S.Ct. 676, 84 L.Ed. 920; with National Tea Co. v. State, 208 Minn. 607, 294 N.W. 230; State Tax Comm. v. Van Cott, 306 U.S. 511, 59 S.Ct. 605, 83 L.Ed. 950, with Van Cott v. State Tax Comm., 98 Utah 264, 96 P.2d 740. In another instance, however, we pursued a less drastic course; we stayed our own hand while petitioner applied to the state court for clarification of its grounds of decision. Compare Herb v. Pitcairn, 324 U.S. 117, 65 S.Ct. 459, 89 L.Ed. 789, with Id., 325 U.S. 77, 65 S.Ct. 954, 89 L.Ed. 1483.
15
In this case, the Supreme Court of California, having promptly and officially, albeit informally, advised us of its ground of decision, feels itself without power to make a formal order therein. One reason is that it has long since closed the case with a final determination, and another is that we, by grant of certiorari, have lifted the case, record and all, out of that court. I cannot say that it is unreasonable for a state court to refrain from entering formal orders in a case which is no longer pending before it.
16
The plain truth of the matter is that the grant of certiorari was an irresponsible exercise of our own power without requiring or considering adequate jurisdictional information. The California Supreme Court has a perfect right to deny an application for habeas corpus to review a contention that under state practice could have, and should have, been urged on appeal. We are without power to require states to allow retrial de novo via habeas corpus of issues tried and open to review on the original record. It seems to me probable that this is the ground the California Supreme Court has taken, not, as this Court intimates, for this particular case, but as a general rule of state law, and I think a wise and proper one. It probably will reaffirm by reinstating the judgment we upset today. I think dismissal of our own writ of certiorari on the candid admission that it was improvidently granted is our wise and lawful course.
1
Loftus v. People of State of Illinois, 1948, 334 U.S. 804, 68 S.Ct. 1212, 92 L.Ed. 1737; Herb v. Pitcairn, 1945, 324 U.S. 117, 65 S.Ct. 459, 89 L.Ed. 789.
2
See Neilson v. Lagow, 1852, 12 How. 98, 109—110, 13 L.Ed. 909.
3
See e.g., Jennings v. State of Illinois, 1951, 342 U.S. 104, 72 S.Ct. 123; Loftus v. People of State of Illinois, supra; Herb v. Pitcairn, supra. State of Minnesota v. National Tea Co., 1940, 309 U.S. 551, 60 S.Ct. 676, 84 L.Ed. 920; Honeyman v. Hanan, 1937, 300 U.S. 14, 57 S.Ct. 350, 81 L.Ed. 476.
4
Cf. Jennings v. State of Illinois, supra; State of Minnesota v. National Tea Co., supra; Honeyman v. Hanan, supra.
| 89
|
344 U.S. 171
73 S.Ct. 198
97 L.Ed. 197
BAILESS et al.v.PAUKUNE.
No. 242.
Submitted Nov. 10, 1952.
Decided Dec. 8, 1952.
Mr. R. L. Lawrence, Anadarko, Okl., R. F. Barry, Oklahoma City, Okl., for petitioners.
Mr. Rexord Bond, Chickasha, Okl., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
In 1901 an Apache Indian, Paukune, was issued a trust patent to land in Caddo County, Oklahoma. This allotment was made under the General Allotment Act of February 8, 1887, 24 Stat. 388, 389.1 Paukune died testate in 1919, leaving a wife Juana and a son Jose. By his will he devised an undivided one-third interest in the allotment to his widow and an undivided two-thirds interest to his son. No fee patent to the land has issued to Paukune, to his widow, or to the son. The trust period of twenty-five years has from time to time been extended. In other words, the United States still holds the land in trust for Paukune and his heirs.
2
In 1947 Juana's undivided one-third interest was assessed for ad valorem taxes in the amount of $21.33 and was advertised for sale for failure to pay. She thereupon instituted this suit in the Oklahoma courts to enjoin the sale and any further levy of ad valorem taxes on the theory that the land was exempt from state taxation. The petitioners answered, alleging that Juana was a non-Indian and therefore not exempt from the taxes. The trial court, without determining whether the widow was an Indian, held her interest nontaxable by the state; and the Supreme Court of Oklahoma affirmed, Okl., 244 P.2d 1137, saying it mattered not under federal law whether the widow was Indian or non-Indian. The case is here on certiorari.
3
Levindale Lead & Zinc Mining Co. v. Coleman, 241 U.S. 432, 36 S.Ct. 644, 60 L.Ed. 1080, dealt with restrictions on alienation attached to land under the Osage Indian Allotment Act of June 28, 1906, 34 Stat. 539. The Court held that the policy of that Act did not embrace person who were not Indians, since the Congress sought to protect only those toward whom it owed the duties of a guardian. The same answer must be given here. If Juana is not an Indian, the United States has no interest of hers in the land to protect.2 True, the United States holds the legal title to the land. But nothing in the Act prevents the devolution of the quitable interest to the widow. If she is not within the class whom Congress sought to protect, the trust is a dry and passive one; there remains only a ministerial act for the trustee to perform, namely the issuance of a fee patent to the cestui.
4
The judgment of the Supreme Court of Oklahoma is reversed and the cause is remanded to that court for proceedings not inconsistent with this opinion. So ordered.
5
Judgment reversed and cause remanded with directions.
1
Section 5 of the Act, 25 U.S.C.A. § 348, provides in part as follows: 'That upon the approval of the allotments provided for in this act by the Secretary of the Interior, he shall cause patents to issue therefor in the name of the allottees, which patents shall be of the legal effect, and declare that the United States does and will hold the land thus allotted, for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or, in case of his decease, of his heirs according to the laws of the State or Territory where such land is located, and that at the expiration of said period the United States will convey the same by patent to said Indian, or his heirs as aforesaid, in fee, discharged of said trust and free of all charge or incumbrance whatsoever: Provided, That the President of the United States may in any case in his discretion extend the period. And if any conveyance shall be made of the lands set apart and allotted as herein provided, or any contract made touching the same, before the expiration of the time above mentioned, such conveyance or contract shall be absolutely null and void: Provided, That the law of descent and partition in force in the State or Territory where such lands are situate shall apply thereto after patents therefor have been executed and delivered, except as herein otherwise provided * * *.'
2
And see Mixon v. Littleton, 8 Cir., 265 F. 603; Unkle v. Wills, 8 Cir., 281 F. 29, 35.
| 12
|
344 U.S. 183
73 S.Ct. 215
97 L.Ed. 216
WIEMAN et al.v.UPDEGRAFF et al.
No. 14.
Argued Oct. 16, 1952.
Decided Dec. 15, 1952.
Mr. Don Emery, Oklahoma City, Okl., Mr. Robert J. Emery, Oklahoma City, Okl., on the brief, for appellants.
Messrs. Paul W. Updegraff, Norman, Okl., Fred Hansen, Oklahoma City, Okl., for appellees.
Mr. Justice CLARK delivered the opinion of the Court.
1
This is an appeal from a decision of the Supreme Court of Oklahoma, Board of Regents v. Updegraff, 205 Okl. 301, 237 P.2d 131, 135, upholding the validity of a loyalty oath1 prescribed by Oklahoma statute for all state officers and employees. Okl.Stat.1951, Tit. 51, §§ 37.1—37.8. Appellants, employed by the state as members of the faculty and staff of Oklahoma Agricultural and Mechanical College, failed, within the thirty days permitted, to take the oath required by the Act. Appellee Updegraff, as a citizen and taxpayer, thereupon brought this suit in the District Court of Oklahoma County to enjoin the necessary state officials from paying further compensation to employees who had not subscribed to the oath. The appellants, who were permitted to intervene, attacked the validity of the Act on the grounds, among others, that it was a bill of attainder; an ex post facto law; impaired the obligation of their contracts with the State and violated the Due Process Clause of the Fourteenth Amendment. They also sought a mandatory injunction directing the state officers to pay their salaries regardless of their failure to take the oath. Their objections centered largely on the following clauses of the oath:
2
'* * * That I am not affiliated directly or indirectly * * * with any foreign political agency, party, organization or Government, or with any agency, party, organization, association, or group whatever which has been officially determined by the United States Attorney General or other authorized agency of the United States to be a communist front or subversive organization; * * * that I will take up arms in the defense of the United States in time of War, or National Emergency, if necessary; that within the five (5) years immediately preceding the taking of this oath (or affirmation) I have not been a member of * * * any agency, party, organization, association, or group whatever which has been officially determined by the United States Attorney General or other authorized public agency of the United States to be a communist front or subversive organization * * *.'
3
The court upheld the Act and enjoined the state officers from making further salary payments to appellants. The Supreme Court of Oklahoma affirmed, sub nom. Board of Regents v. Updegraff, 1951, 205 Ok. 301, 237 P.2d 131, 135.2 We noted probable jurisdiction because of the public importance of this type of legislation and the recurring serious constitutional questions which it presents.
4
The District Court of Oklahoma County in holding the Act valid concluded that the appellants were compelled to take the oath as written; that the appellants 'and each of them, did not take and subscribe to the oath as provided in Section 2 of the Act and wilfully refused to take that oath and by reason thereof the Board of Regents is enjoined from paying them, and their employment is terminated.' In affirming, the Supreme Court of Oklahoma held that the phrase of the oath 'any foreign political agency, party, organization or Government, or with any agency, party, organization, association, or group whatever which has been officially determined by the United States Attorney General or other authorized agency of the United States to be a communist front or subversive organization' actually 'refers to a list or lists of such organizations in existence at the time of the passage of the act which had been prepared by the Attorney General (of the United States) under Governmental directive. Such list or lists are in effect made a part of the oath by reference.' On this point the opinion continues: 'There is no requirement in the act that an oath be taken of non-membership in organizations not on the list of the Attorney General of the United States at the time of the passage of this act.'
5
We read this part of the highest state court's decision as limiting the organizations proscribed by the Act to those designated on the list or lists of the Attorney General which had been issued prior to the effective date of the Act. Although this interpretation discarded clear language of the oath as surplusage, the court denied the appellants' petition for rehearing which included a plea that refusal of the court to permit appellants to take the oath as so interpreted was violative of due process.
6
The purpose of the Act, we are told, 'was to make loyalty a qualification to hold public office or be employed by the State.' 205 Okl. at page 305, 237 P.2d at page 136. During periods of international stress, the extent of legislation with such objectives accentuates our traditional concern about the relation of government to the individual in a free society. The perennial problem of defining that relationship becomes acute when disloyalty is screened by ideological patterns and techniques of disguise that make it difficult to identify. Democratic government is not powerless to meet this threat, but it must do so without infringing the freedoms that are the ultimate values of all democratic living. In the adoption of such means as it believes effective, the legislature is therefore confronted with the problem of balancing its interest in national security with the often conflicting constitutional rights of the individual.
7
In a series of cases coming here in recent years, we have had occasion to consider legislation aimed at safeguarding the public service from disloyalty. Garner v. Board of Public Works, 1951, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317; Adler v. Board of Education, 1952, 342 U.S. 485, 72 S.Ct. 380; Gerende v. Board of Supervisors, 1951, 341 U.S. 56, 71 S.Ct. 565, 95 L.Ed. 745. It is in the context of these decisions that we determine the validity of the oath before us.
8
Garner involved a Los Angeles ordinance requiring all city employees to swear that they did not advocate the overthrow of the government by unlawful means or belong to organizations with such objectives. The ordinance implemented an earlier charter amendment which disqualified from municipal employment all persons unable to take such an oath truthfully. One of the attacks made on the oath in that case was that it violated due process because its negation was not limited to organizations known by the employee to be within the proscribed class. This argument was rejected because we felt justified in assuming that scienter was implicit in each clause of the oath.
9
Alder also indicated the importance of determining whether a rule of exclusion based on association applies to innocent as well as knowing activity. New York had sought to bar from employment in the public schools persons who advocate, or belong to organizations which advocate, the overthrow of the government by unlawful means. The Feinberg Law directed the New York Board of Regents to make a listing, after notice and hearing, of organizations of the type described. Under § 3022 of the statute, Education Law, McK.Consol.Laws, c. 16, the Regents provided by regulation that membership in a listed organization should be prima facie evidence of disqualification for office in the New York public schools. In upholding this legislation, we expressly noted that the New York courts had construed the statute to require knowledge of organizational purpose before the regulation could apply. 342 U.S. at page 494, 72 S.Ct. at pae 385. Cf. American Communications Ass'n v. Douds, 1950, 339 U.S. 382, 413, 70 S.Ct. 674, 94 L.Ed. 925.
10
The oath in Gerende was required of candidates for public office who sought places on a Maryland ballot. On oral argument in that case, the Maryland Attorney General assured us that he would advise the proper state authorities to accept, as complying with the statute, an affidavit stating that the affiant was not engaged in an attempt to overthrow the government by force or violence or knowingly a member of an organization engaged in such an attempt. Because we read an earlier Maryland Court of Appeals' decision as interpreting the statute so that such an affidavit would satisfy its requirements, we affirmed on the basis of this assurance.
11
We assumed in Garner, that if ourinterpretation of the oath as containing an implicit scienter requirement was correct, Los Angeles would give the petitioners who had refused to sign the oath an opportunity to take it as interpreted and resume their employment. But here, with our decision in Garner before it, the Oklahoma Supreme Court refused to extend to appellants an opportunity to take the oath. In addition, a petition for rehearing which urged that failure to permit appellants to take the oath as interpreted deprived them of due process was denied. This must be viewed as a holding that knowledge is not a factor under the Oklahoma statute. We are thus brought to the question touched on in Garner, Adler, and Gerende: whether the due process clause permits a state in attempting to bar disloyal individuals from its employ to exclude persons solely on the basis of organizational membership, regardless of their knowledge concerning the organizations to which they had belonged. For, under the statute before us, the fact of membership alone disqualifies. If the rule be expressed as a presumption of disloyalty, it is a conclusive one.
12
But membership may be innocent. A state servant may have joined a proscribed organization unaware of its activities and purposes. In recent years, many completely loyal persons have severed organizational ties after learning for the first time of the character of groups to which they had belonged. 'They had joined, (but) did not know what it was; they were good, fine young men and women, loyal Americans, but they had been trapped into it because one of the great weaknesses of all Americans, whether adult or youth, is to join something.'3 At the time of affiliation, a group itself may be innocent, only later coming under the influence of those who would turn it toward illegitimate ends. Conversely, an organization formerly subversive and therefore designated as such may have subsequently freed itself from the influences which originally led to its listing.
13
There can be do dispute about the consequences visited upon a person excluded from public employment on disloyalty grounds. In the view of the community, the stain is a deep one; indeed, it has become a badge of infamy. Especially is this so in time of cold war and hot emotions when 'each man begins to eye his neighbor as a possible enemy.'4 Yet under the Oklahoma Act, the fact of association alone determines disloyalty and disqualification; it matters not whether association existed innocently or knowingly. To thus inhibit individual freedom of movement is to stifle the flow of democratic expression and controversy at one of its chief sources. We hold that the distinction observed between the case at bar and Garner, Adler and Gerende is decisive. Indiscriminate classification of innocent with knowing activity must fall as an assertion of arbitrary power. The oath offends due process.
14
But appellee insists that Adler and United Public Workers v. Mitchell, 1947, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754, are contra. We are referred to our statement in Adler that persons seeking employment in the New York public schools have 'no right to work for the State in the school system on their own terms. United Public Workers v. Mitchell * * *. They may work for the school system upon the reasonable terms laid down by the proper authorities of New York.' 342 U.S. at page 492, 72 S.Ct. at page 384. To draw from this language the facile generalization that there is no constitutionally protected right to public employment is to obscure the issue. For, in United Public Workers, though we held that the Federal Government through the Hatch Act, 18 U.S.C.A. §§ 118j, 118l, could properly bar its employees from certain types of political activity thought inimical to the interests of the Civil Service, we cast this holding into perspective by emphasizing that Congress could not 'enact a regulation providing that no Republican, Jew or Negro shall be appointed to federal office, or that no federal employee shall attend Mass or take any active part in missionary work.' 330 U.S. at page 100, 67 S.Ct. at page 569, 91 L.Ed. 754. See also In re Summers, 1945, 325 U.S. 561, 571, 65 S.Ct. 1307, 1313, 89 L.Ed. 1795. We need not pause to consider whether an abstract right to public employment exists. It is sufficient to say that constitutional protection does extend to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory.
15
Because of this disposition, we do not pass on the serious questions raised as to whether the Act, in proscribing those 'communist front or subversive organizations' designated as such on lists of the Attorney General of the United States, gave fair notice to those affected, in view of the fact that those listings have never included a designation of 'communist fronts,' and have in some cases designated organizations without classifying them. Nor need we consider the significance of the differing standards employed in the preparation of those lists and their limited evidentiary use under the Federal Loyalty Program.
16
Reversed.
17
Mr. Justice JACKSON, not having heard the argument, took no part in the consideration or decision of this case.
18
Mr. Justice BURTON concurs in the result.
19
Mr. Justice BLACK, concurring.
20
I concur in all the Court says in condemnation of Oklahoma's test oath. I agree that the State Act prescribing that test oath is fatally offensive to the due process guarantee of the United States Constitution.
21
History indicates that individual liberty is intermittently subjected to extraordinary perils. Even countries dedicated to government by the people are not free from such cyclical dangers. The first years of our Republic marked such a period. Enforcement of the Alien and Sedition Laws by zealous patriots who feared ideas made it highly dangerous for people to think, speak, or write critically about government, its agents, or its policies, either foreign or domestic. Our constitutional liberties survived the ordeal of this regrettable period because there were influential men and powerful organized groups bold enough to champion the undiluted right of individuals to publish and argue for their beliefs however unorthodox or loathsome. Today however, few individuals and organizations of power and influence argue that unpopular advocacy has this same wholly unqualified immunity from governmental interference. For this and other reasons the present period of fear seems more ominously dangerous to speech and press than was that of the Alien and Sedition Laws. Suppressive laws and practices are the fashion. The Oklahoma oath statute is but one manifestation of a national network of laws aimed at coercing and controlling the minds of men. Test oaths are notorious tools of tyranny. When used to shackle the mind they are, or at least they should be, unspeakably odious to a free people. Test oaths are made still more dangerous when combined with bills of attainder which like this Oklahoma statute impose pains and penalties for past lawful associations and utterances.
22
Governments need and have ample power to punish treasonable acts. But it does not follow that they must have a further power to punish thought and speech as distinguished from acts. Our own free society should never forget that laws which stigmatize and penalize thought and speech of the unorthodox have a way of reaching, ensnaring and silencing many more people than at first intended. We must have freedom of speech for all or we will in the long run have it for none but the cringing and the craven. And I cannot too often repeat my belief that the right to speak on matters of public concern must be wholly free or eventually be wholly lost.
23
It seems self-evident that all speech criticizing government rulers and challenging current beliefs may be dangerous to the status quo. With full knowledge of this danger the Framers rested our First Amendment on the premise that the slightest suppression of thought, speech, press, or public assembly is still more dangerous. This means that individuals are guaranteed an undiluted and unequivocal right to express themselves on questions of current public interest. It means that Americans discuss such questions as of right and not on sufferance of legislatures, courts or any other governmental agencies. It means that courts are without power to appraise and penalize utterances upon their notion that these utterances are dangerous. In my view this uncompromising interpretation of the Bill of Rights is the one that must prevail if its freedoms are to be saved. Tyrannical totalitarian governments cannot safely allow their people to speak with complete freedom. I believe with the Framers that our free Government can.
24
Mr. Justice DOUGLAS concurs in this opinion.
25
Mr. Justice FRANKFURTER, whom Mr. Justice DOUGLAS joins, concurring.
26
The times being what they are, it is appropriate to add a word by way of emphasis to the Court's opinion, which I join.
27
The case concerns the power of a State to exact from teachers in one of its colleges an oath that they are not, and for the five years immediately preceding the taking of the oath have not been, members of any organization listed by the Attorney General of the United States, prior to the passage of the statute, as 'subversive' or 'Communist-front.' Since the affiliation which must thus be forsworn may well have been for reasons or for purposes as innocent as membership in a club of one of the established political parties, to require such an oath, on pain of a teacher's loss of his position in case of refusal to take the oath, penalizes a teacher for exercising a right ofassociation peculiarly characteristic of our people. See Arthur M. Schlesinger, Sr., Biography of a Nation of Joiners, 50 Am.Hist.Rev. 1 (1944), reprinted in Schlesinger, Paths To The Present 23. Such joining is an exercise of the rights of free speech and free inquiry. By limiting the power of the States to interfere with freedom of speech and freedom of inquiry and freedom of association, the Fourteenth Amendment protects all persons, no matter what their calling. But, in view of the nature of the teacher's relation to the effective exercise of the rights which are safeguarded by the Bill of Rights and by the Fourteenth Amendment, inhibition of freedom of thought, and of action upon thought, in the case of teachers brings the safeguards of those amendments vividly into operation. Such unwarranted inhibition upon the free spirit of teachers affects not only those who, like the appellants, are immediately before the Court. It has an unmistakeable tendency to chill that free play of the spirit which all teachers ought especially to cultivate and practice; it makes for caution and timidity in their associations by potential teachers.
28
The Constitution of the United States does not render the United States or the States impotent to guard their governments against destruction by enemies from within. It does not preclude measures of self-protection against anticipated overt acts of violence. Solid threats to our kind of government—manifestations of purposes that reject argument and the free ballot as the means for bringing about changes and promoting progress—may be met by preventive measures before such threats reach fruition. However, in considering the constitutionality of legislation like the statute before us it is necessary to keep steadfastly in mind what it is that is to be secured. Only thus will it be evident why the Court has found that the Oklahoma law violates those fundamental principles of liberty 'which lie at the base of all our civil and political institutions' and as such are imbedded in the due process of law which no State may offend. Hebert v. State of Louisiana, 272 U.S. 312, 316, 47 S.Ct. 103, 104, 71 L.Ed. 270.
29
That our democracy ultimately rests on public opinion is a platitude of speech but not a commonplace in action. Public opinion is the ultimate reliance of our society only if it be disciplined and responsible. It can be disciplined and responsible only if habits of open-mindedness and of critical inquiry are acquired in the formative years of our citizens. The process of education has naturally enough been the basis of hope for the perdurance of our democracy on the part of all our great leaders, from Thomas Jefferson onwards.
30
To regard teachers—in our entire educational system, from the primary grades to the university—as the priests of our democracy is therefore not to indulge in hyperbole. It is the special task of teachers to foster those habits of open-mindedness and critical inquiry which alone make for responsible citizens, who, in turn, make possible an enlightened and effective public opinion. Teachers must fulfill their function by precept and practice, by the very atmosphere which they generate; they must be exemplars of open-mindedness and free inquiry. They cannot carry out their noble task if the conditions for the practice of a responsible and critical mind are denied to them. They must have the freedom of responsible inquiry, by thought and action, into the meaning of social and economic ideas, into the checkered history of social and economic dogma. They must be free to sift evanescent doctrine, qualified by time and circumstance, from that restless, enduring process of extending the bounds of understanding and wisdom, to assure which the freedoms of thought, of speech, of inquiry, of worship are guaranteed by the Constitution of the United States against infraction by national or State government.
31
The functions of educational institutions in our national life and the conditions under which alone they can adequately perform them are at the basis of these limitations upon State and national power. These functions and the essential conditions for their effective discharge have been well described by a leading educator:
32
'Now, a university is a place that is established and will function for the benefit of society, provided it is a center of independent thought. It is a center of independent thought and criticism that is created in the interest of the progress of society, and the one reason that we know that every totalitarian government must fail is that no totalitarian government is prepared to face the consequences of creating free universities.
33
'It is important for this purpose to attract into the institution men of the greatest capacity, and to encourage them to exercise their independent judgment.
34
'Education is a kind of continuing dialogue, and a dialogue assumes, in the nature of the case, different points of view.
35
'The civilization which I work and which, I am sure, every American is working toward could be called a civilization of the dialogue, where, instead of shooting one another when you differ, you reason things out together. SU 'In this dialogue, then, you cannot assume that you are going to have everybody thinking the same way or feeling the same way. It would be unprogressive if that happened. The hope of eventual development would be gone. More than that, of course it would be very boring.
36
'A university, then, is a kind of continuing Socratic conversation on the highest level for the very best people you can think of, you can bring together, about the most important questions, and the thing that you must do to the uttermost possible limits is to guarantee those men the freedom to think and to express themselves.
37
'Now, the limits on this freedom, the limits on this freedom cannot be merely prejudice, because although our prejudices might be perfectly satisfactory, the prejudices of our successors, or of those who are in a position to bring pressure to bear on the institution, might be subversive in the real sense, subverting the American doctrine of free thought and free speech.' Statement of Robert M. Hutchins, Associate Director of the Ford Foundation, November 25, 1952, in Hearings before the House Select Committee to Investigate Tax-exempt Foundations and Comparable Organizations, pursuant to H.Res. 561, 82d Cong., 2d Sess.
1
'I, _ _, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the State of Oklahoma against all enemies, foreign and domestic; that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of Oklahoma; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties upon which I am about to enter.
'And I do further swear (or affirm) that I do not advocate, nor am I a member of any party or organization, political or otherwise, that now advocates the overthrow of the Government of the United States or of the State of Oklahoma by force or violence or other unlawful means; That I am not affiliated directly or indirectly with the Communist Party, the Third Communist International, with any foreign political agency, party, organization or Government, or with any agency, party, organization, association, or group whatever which has been officially determined by the United States Attorney General or other authorized agency of the United States to be a communist front or subversive organization; nor do I advocate revolution, teach or justify a program of sabotage, force or violence, sedition or treason, against the Government of the United States or of this State; nor do I advocate directly or indirectly, teach or justify by any means whatsoever, the overthrow of the Government of the United States or of this State, or change in the form of Government thereof, by force
or any unlawful means; that I will take up arms in the defense of the United States in time of War, or National Emergency, if necessary; that within the five (5) years immediately preceding the taking of this oath (or affirmation) I have not been a member of the Communist Party, the Third Communist International, or of any agency, party, organization, association, or group whatever which has been officially determined by the United States Attorney General or other authorized public agency of the United States to be a communist front or subversive organization, or of any party or organization, political or otherwise, that advocated the overthrow of the Government of the United States or of the State of Oklahoma by force or violence or other unlawful means;
'And I do further swear (or affirm) that during such time as I am _ _ (Here put name of office, or, if an employee,) insert 'An employee of' followed by the complete designation of the employing officer, office, agency, authority, commission, department or institution.
'I will not advocate and that I will not become a member of any party or organization, political or otherwise, that advocates the overthrow of the Government of the United States or of the State of Oklahoma by force or violence or other unlawful means.'
2
The state officials named as defendants in Updegraff's suit took the position in the state courts that the statute was unconstitutional. Following a policy of the Oklahoma Attorney General not to appeal from adverse decisions of the state supreme court, these defendants are here only because they were made appellees by the appellant-intervenors. They have chosen in their brief merely to restate, without argument, their position in the court below.
3
Testimony of J. Edgar Hoover, Hearings before House Committee on Un-American Activities on H.R. 1884 and H.R. 2122, 80th Cong., 1st Sess. 46.
4
Address by Judge Learned Hand at the 86th Convocation of the University of the State of New York, delivered October 24, 1952, at Albany, New York.
| 23
|
344 U.S. 199
73 S.Ct. 232
97 L.Ed. 231
SCHWARTZv.STATE OF TEXAS.
No. 41.
Argued Nov. 12, 1952.
Decided Dec. 15, 1952.
Mr. Maury Hughes, Dallas, Tex., for petitioner.
Messrs. Henry Wade, Dallas, Tex., Calvin B. Garwood, Jr., Houston, Tex., pro hac vice, by special leave of Court, for respondent.
Mr. Justice MINTON delivered the opinion of the Court.
1
The petitioner, Schwartz, a pawnbroker, entered into a conspiracy with Jarrett and Bennett whereby the latter two were to rob places to be designated by Schwartz and bring the loot to him to dispose of and divide the proceeds with them. Pursuant to the plan, Jarrett and Bennett robbed a woman in Dallas, Texas, of her valuable jewels and brought the loot to the petitioner. After the petitioner repeatedly delayed settlement with the robbers, the thieves finally fell not, which proved very helpful to the police. The petitioner tipped off the police where they could find Jarrett. After Jarrett had been in jail about two weeks, he consented to telephone the petitioner from the sheriff's office. With the knowledge and consent of Jarrett, a professional operator set up an induction coil connected to a recorder amplifier which enabled the operator to overhear and simultaneously to record the telephone conversations between Jarrett and the petitioner. These records were used as evidence before the jury that tried and convicted the petitioner as an accomplice to the crime of robbery. The records, admitted only after Jarrett and the petitioner had testified, corroborated Jarrett and discredited the petitioner. The Court of Criminal Appeals of Texas upheld the conviction, Tex.Cr.App., 246 S.W.2d 174, rehearing denied, Tex.Cr.App., 246 S.W.2d 179. We granted certiorari, 343 U.S. 975, 72 S.Ct. 1073.
2
Petitioner contends that § 605 of the Federal Communications Act1 makes inadmissible in evidence the records of intercepted telephone conversations without the petitioner's consent. The pertinent provision of the statute reads as follows:
3
'* * * no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person * * *.' Section 501 of 47 U.S.C., 47 U.S.C.A. § 501, provides a penalty for the violation of § 605.
4
We are dealing here only with the application of a federal statute to state proceedings. Without deciding, but assuming for the purposes of this case, but the telephone communications were intercepted without being authorized by the sender within the meaning of the Act, the question we have is whether these communications are barred by the federal statute, § 605, from use as evidence in a criminal proceeding in a state court.
5
We think not. Although the statute contains no reference to the admissibility of evidence obtained by wire tapping, it has been construed to render inadmissible in a court of the United States communications intercepted and sought to be divulged in violation thereof, Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314, and this is true even though the communications were intrastate telephone calls. Weiss v. United States, 308 U.S. 321, 329, 60 S.Ct. 269, 272, 84 L.Ed. 298. Although the intercepted calls would be inadmissible in a federal court, it does not follow that such evidence is inadmissible in a state court. Indeed, evidence obtained by a state officer by means which would constitute an unlawful search and seizure under the Fourth Amendment to the Federal Constitution is nonetheless admissible in a state court, Wolf v. State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, while such evidence, if obtained by a federal officer, would be clearly inadmissible in a federal court. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652. The problem under § 605 is somewhat different because the introduction of the intercepted communications would itself be a violation of the statute, but in the absence of an expression by Congress, this is simply an additional factor for a state to consider in formulating a rule of evidence for use in its own courts. Enforcement of the statutory prohibition in § 605 can be achieved under the penal provisions of § 501.
6
This question has been many times before the state courts, and they have uniformly held that § 605 does not apply to exclude such communications from evidence in state courts. Leon v. State, 180 Md. 279, 23 A.2d 706; People v. Stemmer, 298 N.Y. 728, 83 N.E.2d 141; Harlem Check Cashing Corp. v. Bell, 296 N.Y. 15, 68 N.E.2d 854; People v. Channell, 107 Cal.App.2d 192, 236 P.2d 654. While these cases are not controlling here, they are entitled to consideration because of the high standing of the courts from which they come.
7
Texas itself has given consideration to the admissibility of evidence obtained in violation of constitutional or statutory law and has carefully legislated concerning it. In 1925 Texas enacted a statute providing that evidence obtained in violation of the Constitution or laws of Texas or of the United States should not be admissible against the accused in a criminal case.2 In 1929 this Article 727a of the Texas Code of Criminal Procedure was amended to provide that evidence obtained in violation of the Constitution or laws of Texas or the Constitution of the United States should be inadmissible in evidence,3 thus eliminating from the coverage of the statute evidence obtained in violation of the laws of the United States.
8
Where a state has carefully legislated so as not to render inadmissible evidence obtained and sought to be divulged in violation of the laws of the United States, this Court will not extend by implication the statute of the United States so as to invalidate the specific language of the state statute. If Congress is authorized to act in a field, it should manifest its intention clearly. It will not be presumed that a federal statute was intended to supersede the exercise of the power of the state unless there is a clear manifestation of intention to do so. The exercise of federal supremacy is not lightly to be presumed.
9
'The principle thus applicable has been frequently stated. It is that the Congress may circumscribe its regulation and occupy a limited field, and that the intention to supersede the exercise by the state of its authority as to matters not covered by the federal legislation is not to be implied unless the Act of Congress fairly interpreted is in conflict with the law of the State.' Atchison, T. &. S.F.R. Co. v. Railroad Commission of State of California, 283 U.S. 380, 392 393, 51 S.Ct. 553, 556, 75 L.Ed. 1128. See Savage v. Jones, 225 U.S. 501, 533, 32 S.Ct. 715, 726, 56 L.Ed. 1182.
10
'It should never be held that Congress intends to supersede, or by its legislation suspend, the exercise of the police powers of the states, even when it may do so, unless its purpose to effect that result is clearly manifested.' Reid v. State of Colorado, 187 U.S. 137, 148, 23 S.Ct. 92, 96, 47 L.Ed. 108.
11
It is due consideration but not controlling that Texas has legislated in this field. Our decision would be the same if the Texas courts had pronounced this rule of evidence.
12
We hold that § 605 applies only to the exclusion in federal court proceedings of evidence obtained and sought to be divulged in violation thereof; it does not exclude such evidence in state court proceedings. Since we do not believe that Congress intended to impose a rule of evidence on the state courts, we do not decide whether it has the power to do so.
13
Since the statute is not applicable to state proceedings, we do not have to decide the questions of what amounts to 'interception,' or whether if there was interception, the sender had authorized it. These questions can arise only in a federal court proceeding.
14
The judgment is affirmed.
15
Affirmed.
16
Mr. Justice BLACK concurs in the result.
17
Mr. Justice FRANKFURTER, concurring in the result.
18
If the only question involved in this case were the applicability to prosecutions in State courts, in situations like the present, of § 605 of the Federal Communications Act, 47 U.S.C. § 605, 47 U.S.C.A. § 605, as construed in the two Nardone cases, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314; 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307, I would join in the opinion of the Court. I agree with the views on this subject expressed by Mr. Justice Minton.
19
The matter is complicated, however, by a Texas statute, Art. 727a, Vernon's Code of Criminal Procedure (1948), which renders inadmissible in criminal trials evidence obtained in violation of any provision 'of the Constitution of the United States'. If this limitation means, according to Texas law, that the State court is to construe what is or is not a violation under the United States Constitution, it does not raise a federal question. But if the Texas legislation means that the Texas courts are bound by what this Court deems a violation of the United States Constitution, the problem is, or might be, different. See State Tax Commission of Utah v. Van Cott, 306 U.S. 511, 59 S.Ct. 605, 83 L.Ed. 950. While, on the latter assumption, the circumstances attending the evidence that was admitted here would, in my view, render it inadmissible in a federal prosecution, see my sissent in On Lee v. United States, 343 U.S. 747, 758, 72 S.Ct. 967, 974, the decision of this Court was to the contrary. Therefore the Texas court was in duty bound to follow that decision and to reach the result it reached even if it felt constrained, as apparently it did, to be governed by the views of this Court as to what constitutes a violation of the United States Constitution. I cannot say that the Texas court should have followed my minority views, to which I adhere, on this constitutional question, and disregarded the Court's authority.
20
Mr. Justice DOUGLAS, dissenting.
21
Since, in my view (as indicated in my dissent in On Lee v. United States, 343 U.S. 747, 762, 72 S.Ct. 967, 976), this wiretapping was a search that violated the Fourth Amendment, the evidence obtained by it should have been excluded. The question whether the Fourth Amendment is applicable to the states, see Wolf v. State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, probably need not be reached, because a Texas statute has excluded evidence obtained in violation of the Federal Constitution. Therefore I would reverse the judgment. It is true that the prior decisions of the Court point to affirmance. But those decisions reflect constructions of the Constitution which I think are erroneous. They impinge severely on the liberty of the individual and give the police the right to intrude into the privacy of any life. The practices they sanction have today acquired a momentum that is so ominous I cannot remain silent and bow to the precedents that sanction them.
1
48 Stat. 1064, 47 U.S.C. § 151 et seq., 47 U.S.C.A. § 151 et seq.
2
Tex.Laws 1925, c. 49, § 1.
3
Vernon's Tex.Stat.1948 (Code Crim. Proc.) Art. 727a.
| 01
|
344 U.S. 206
73 S.Ct. 245
97 L.Ed. 245
FEDERAL TRADE COMMISSIONv.MINNEAPOLIS-HONEYWELL REGULATOR CO.
No. 11.
Argued Oct. 15 and 16, 1952.
Decided Dec. 22, 1952.
Mr. Robert L. Stern, Acting Solicitor General, Washington, D.C., for petitioner.
Mr. Albert R. Connelly, New York City, for respondent.
Mr. Chief Justice VINSON delivered the opinion of the Court.
1
The initial question in this case is one of jurisdiction whether the petition for certiorari was filed within the period allowed by law.1 We hold that it was not.
2
The cause grows out of a proceeding initiated by petitioner, the Federal Trade Commission, in 1943. At that time, the Commission issued a three-count complaint against respondent. Count I charged a violation of § 5 of the Federal Trade Commission Act;2 Count II charged a violation of § 3 of the Clayton Act;3 Count III dealt with an alleged violation of § 2(a) of the Clayton Act as amended by the Robinson-Patman Act.4 A protracted administrative proceeding followed. The Commission finally determined against respondent on all three counts, and it issued a cease and desist order, in three parts, covering each of the three violations.
3
Respondent petitioned the Court of Appeals for the Seventh Circuit to review and set aside this order. The Commission sought enforcement of all parts of its order in a cross-petition.
4
Respondent abandoned completely its attack on Parts I and II of the order. In briefs and in oral argument, respondent made it clear that the legality of Part III was the only contested issue before the Court of Appeals. Neither party briefed or argued any question arising out of Parts I and II.
5
On July 5, 1951, the Court of Appeals announced its decision. 191 F.2d 786, 787. The opinion stated that since respondent did not 'challenge Parts I and II of the order based on the first two counts of the complaint we shall make no further reference to them.' The court then went on to hold that Part III of petitioner's order could not be sustained by substantial evidence and should be reversed. On the same day, the court entered its judgment, the pertinent portion reading as follows:
6
'* * * it is ordered and adjudged by this Court that Part III of the decision of the Federal Trade Commission entered in this cause on January 14, 1948, be, and the same is hereby, Reversed, and Count III of the complaint upon which it is based be, and the same is hereby Dismissed.'
7
The Court of Appeals requires petitions for rehearing to be filed 'within 15 days after the entry of judgment.' The Commission filed no such petition. On August 21, 1951, long after the expiration of this 15-day period, and after a certified copy of said judgment, in lieu of mandate, was issued, the Commission filed a memorandum with the court which reads in part as follows:
'On July 5, 1951, the Court entered its opinion and
8
judgment reversing Part III of the decision of the Federal Trade Commission dated January 14, 1948 and dismissing Count III of the complaint upon which it is based. No disposition has been made of the Cross-Petition filed by the Commission for affirmance and enforcement of the entire decision. The Commission takes the position that its Cross-Petition should be in part sustained, i.e., to the extent that the Court should make and enter herein a decree affirming Parts I and II of the Commission's order to cease and desist and commanding Minneapolis-Honeywell Regulator Company to obey the same and comply therewith * * *.
9
'11. In its briefs filed herein the petitioner abandoned its attack upon Parts I and II of the order and challenged only the validity of Part III of the order (see page 1 of petitioner's brief dated March 15, 1951). Thus, petitioner concedes the validity of Parts I and II of the order and does not contest the prayer of the Commission's Cross-Petition and brief with respect to the affirmance and enforcement of Parts I and II of the order.'
10
Clearly, by this memorandum the Commission sought no alteration of the judgment relative to Part III; in fact, it acknowledged the entry ofjudgment reversing Part III on July 5, 1951. It did not even claim it to be a petition for rehearing. It was submitted that Parts I and II of the order were uncontested, and 'In conclusion * * * submitted that the Court should make and enter * * * a decree affirming Parts I and II of the Commission's order to cease and desist.'
11
On September 18, 1951, the Court of Appeals issued what it called is 'Final Decree.' Again the court 'ordered, adjudged and decreed' that Part III of the Commission's order 'is hereby reversed and Count III of the complaint upon which it is based be and the same is hereby dismissed.' The court then went on to affirm Parts I and II, and it entered a judgment providing for their enforcement, after reciting again that there was no contest over this phase of the order.
12
On December 14, 1951, the Commission filed its petition for certiorari. Obviously, the petition was out of time unless the ninety-day filing period began to run anew from the second judgment entered on September 18, 1951. In our order granting certiorari, 342 U.S. 940, 72 S.Ct. 552, we asked counsel to discuss the 'timeliness of the application for the writ.'
13
Petitioner refers us to cases which have held that when a court considers on its merits an untimely petition for a rehearing, or an untimely motion to amend matters of substance in a judgment, the time for appeal may begin to run anew from the date on which the court disposed of the untimely application.5
14
Petitioner apparently would equate its memorandum of August 21, 1951, with an untimely petition for a rehearing affecting Part III. But certainly its language and every inference therein is to the contrary. When petitioner filed its memorandum, the time for seeking a rehearing had long since expired.
15
Moreover, the memorandum was labeled neither as a petition for a rehearing nor as a motion to amend the previous judgment, and in no manner did it purport to seek such relief. On the contrary, the Commission indicated that it was quite content to let the Court of Appeals' decision of July 5 stand undisturbed. Since we cannot treat the memorandum of August 21 as petitioner would have us treat it, we cannot hold that the time for filing a petition for certiorari was enlarged simply because this paper may have prompted the court below to take some further action which had no effect on the merits of the decision that we are now asked to review in the petition for certiorari.
16
Petitioner tells us that the application must be deemed to be in time because 'when a court actually changes its judgment, the time to appeal or petition begins to run anew irrespective of whether a petition for rehearing has been filed.'6 We think petitioner's interpretation of our decisions is too liberal.
17
While it may be true that the Court of Appeals had the power to supersede the judgment of July 5 with a new one,7 it is also true, as that court itself has recognized, that the time within which a losing party must seek review cannot be enlarged just because the lower court in its discretion thinks it should be enlarged.8 Thus, the mere fact that a judgment previously entered has been reentered or revised in an immaterial way does not toll the time within which review must be sought.9 Only when the lower court changes matters of substance,10 or resolves a genuine ambiguity,11 in a judgment previously rendered should the period within which an appeal must be taken or a petition for certiorari filed begin to run anew. The test is a practical one. The question is whether the lower court, in its second order, has disturbed or revised legal rights and obligations which, by its prior judgment, had been plainly and properly settled with finality.12
18
The judgment of September 18, which petitioner now seeks to have us review, does not meet this test. It reiterated, without change, everything which had been decided on July 5. Since the one controversy between the parties related only to the matters which had been adjudicated on July 5, we cannot ascribe any significance, as far as timeliness is concerned, to the later judgment.13
19
Petitioner puts great emphasis on the fact that the judgment of September 18 was labeled a 'Final Decree' by the Court of Appeals, whereas the word 'Final' was missing from the judgment entered on July 5. But we think the question of whether the time for petitioning for certiorari was to be enlarged cannot turn on the adjective which the court below chose to use in the caption of its second judgment. Indeed, the judgment of July 5 was for all purposes final. It put to rest the questions which the parties had litigated in the Court of Appeals. It was neither 'tentative, informal nor incomplete'.14 Consequently, we cannot accept the Commission's view that a decision against it on the time question will constitute an invitation to other litigants to seek piecemeal review in this Court in the future.
20
Thus, while we do not mean to encourage applications for piecemeal review by today's decision, we do mean to encourage applicants to this Court to take heed of another principle—the principle that litigation must at some definite point be brought to an end.15 It is a principle reflected in the statutes which limit our appellate jurisdiction to those cases where review is sought within a prescribed period. Those statutes are not to be applied so as to permit a tolling of their time limitations because some event occurred in the lower court after judgment was rendered which is of no import to the matters to be dealt with on review.
21
Accordingly, the writ of certiorari is dismissed.
22
Writ of certiorari dismissed.
23
Mr. Justice BLACK, dissenting.
24
The end result of what the Court does today is to leave standing a Court of Appeals decree which I think is so clearly wrong that it could well be reversed without argument. The decree set aside an order of the Federal Trade Commission directing Minneapolis-Honeywell to stop violating § 2(a) of the Robinson-Patman Act by selling oil burner controls to some customers cheaper than to others. The Court of Appeals not only set aside the Commission's order as permitted under some circumstances. It went much further and ordered the Commission to dismiss Count III of the complaint against Minneapolis-Honeywell. In doing so the Court of Appeals invaded an area which Congress has made the exclusive concern of the Federal Trade Commission. See Federal Trade Commission v. Morton Salt Co., 334 U.S. 37, 55, 68 S.Ct. 822, 832, 92 L.Ed. 1196; Federal Power Commission v. Idaho Power Co., 344 U.S. 17, 20, 73 S.Ct. 85, 86; Federal Communications Commission v. Pottsville Broadcasting Co., 309 U.S. 134, 145—146, 60 S.Ct. 437, 442—443, 84 L.Ed. 656.
25
Moreover, the Court of Appeals held that there was no evidence at all to substantiate the Commission finding that a quantity discount pricing system of Minneapolis-Honeywell resulted in price discriminations that violated § 2(a) of the Robinson-Patman Act. But there was evidence before the Commission that some customers of Minneapolis-Honeywell were given substantially bigger discounts on purchases than those given their competitors. And the Commission found that these variations were not justified by any differences in costs of manufacture, sale or delivery. We have emphasized that such a showing amply supports a Commission cease and desist order. Federal Trade Commission v. Morton Salt Co., 334 U.S. 37, 47, 68 S.Ct. 822, 829, 92 L.Ed. 1196. The Court of Appeals here failed to follow our holding in the Morton Salt case. For this reason also it should be reversed.
26
I think the following facts show that the petition for certiorari here was filed in time. The Court of Appeals was petitioned by Minneapolis-Honeywell to review and set aside a Trade Commission order in its entirety. Later Minneapolis-Honeywell apparently conceded validity of part of the order and the court's first decree of July 5, 1951, failed to pass on all the provisions of the Commission's order.1 The Commission had ninety days to ask that we review that partial order if it was a 'final' one. Within that ninety days, on August 21, 1951, the Commission asked the Court of Appeals to pass on the remainder of the order. In response a new and expanded decree of the Court of Appeals came down September 18, 1951, marked 'Final Decree.' December 14, 1951, within ninety days after rendition of this 'Final Decree,' the Commission filed here its petition for certiorari which the Court now dismisses.
27
I think that no statute, precedent or reason relied on by the Court requires dismissal of this cause. Of course appealability of a judgment depends on its being 'final' in the legalistic sense. But there is no more ambiguous word in all the legal lexicon.2 The Court of Appeals thought its second not its first decree was 'final.' Counsel for the Commission evidently believed the second judgment was the 'final' one. I am confident many lawyers would have thought the same under this Court's former cases. So I would have viewed the second judgment before today's holding. Former cases would have pointed strongly to rejection of appeal from the incomplete first decree as an attempted 'piecemeal' review.3
28
The majority advances logical and rational grounds for its conclusion that the first judgment rather than the second one was 'final.' That the second judgment was 'final,' legalistically speaking, is equally supportable by logic, reason and precedent, if not more so.4 But in arguing over 'finality' we should not ignore the fact that Congress has declared that this type of proceeding should be reviewable both in the Court of Appeals and here. We frustrate that declaration when review is denied a litigant because of his failure to guess right when confronted in August 1951 with a puzzle, the answer to which no one could know until today.
29
In prior cases cited in the Court's opinion this Court has found ways to grant review to litigants bedeviled and confused by the judicially created fog of 'finality.'5 In those prior cases the Court recognized the vagueness of the finality rule and refused to throw out of court litigants who had acted bona fide. It is unfortunate that the Court today fails to utilize this same kind of judicial ingenuity to afford this litigant the review Congress saw fit to provide in the public interest.
30
The proceedings against Minneapolis-Honeywell began before the Commission nine years ago. Sixteen hundred pages of evidence were put on the record. It all goes to nought apparently because Commission counsel lacked sufficient clairvoyance to anticipate that this Court would hold that the July judgment rather than the one in September was final. Rules of practice and procedure should be used to promote the ends of justice, not to defeat them.6
31
Mr. Justice DOUGLAS, dissenting.
32
While I do not believe the merits of the case are as clear as Mr. Justice BLACK indicates, I join in the parts of his opinion which deal with the question whether the petition for certiorari was timely under 28 U.S.C. § 2101(c), 28 U.S.C.A. § 2101(c).
1
28 U.S.C. § 2101(c), 28 U.S.C.A. § 2101(c).
2
38 Stat. 719, 15 U.S.C. § 45, 15 U.S.C.A. § 45.
3
38 Stat. 731, 15 U.S.C. § 14, 15 U.S.C.A. § 14.
4
38 Stat. 730, as amended, 49 Stat. 1526, 15 U.S.C. § 13(a), 15 U.S.C.A. § 13(a).
5
Pfister v. Northern Illinois Finance Corp., 1942, 317 U.S. 144, 149, 63 S.Ct. 133, 137, 87 L.Ed. 146; Bowman v. Loperena, 1940, 311 U.S. 262, 266, 61 S.Ct. 201, 203, 85 L.Ed. 177; Wayne United Gas Co. v. Owens-Illinois Glass Co., 1937, 300 U.S. 131, 137—138, 57 S.Ct. 382, 385—386, 81 L.Ed. 557.
6
Brief for petitioner, p. 43.
7
28 U.S.C. § 452, 28 U.S.C.A. § 452; see Zimmern v. United States, 1936, 298 U.S. 167, 56 S.Ct. 706, 80 L.Ed. 1118.
8
See Fine v. Paramount Pictures, 7 Cir., 1950, 181 F.2d 300, 304.
9
Department of Banking, State of Nebraska v. Pink, 1942, 317 U.S. 264, 63 S.Ct. 233, 87 L.Ed. 254; Toledo Scale Co. v. Computing Scale Co., 1923, 261 U.S. 399, 43 S.Ct. 458, 67 L.Ed. 719; Credit Co., Ltd. v. Arkansas Central R. Co., 1888, 128 U.S. 258, 9 S.Ct. 107, 32 L.Ed. 448.
10
See Zimmern v. United States, 1935, 298 U.S. 167, 169, 56 S.Ct. 706, 707, 80 L.Ed. 1118; compare Department of Banking of State of Nebraska v. Pink, supra.
11
Compare Federal Power Commission v. Idaho Power Co., 1952, 344 U.S. 17, 73 S.Ct. 85.
12
Compare Rubber Co. v. Goodyear, 1868, 6 Wall. 153, 18 L.Ed. 762 (appeal allowed from a second decree, restating most provisions of the first because the first decree, at the time of entry, was only regarded by the parties and the court as tentative); City of Memphis v. Brown, 1877, 94 U.S. 715, 24 L.Ed. 244 (appeal allowed from second judgment on the ground that the second made material changes in the first). See United States v. Hark, 1944, 320 U.S. 531, 533—534, 64 S.Ct. 359, 360, 88 L.Ed. 290; Hill v. Hawes, 1944, 320 U.S. 520, 523, 64 S.Ct. 334, 336, 88 L.Ed. 283.
13
The suggestion is made that the September 18 judgment injected a new controversy into the litigation—the question of whether the Court of Appeals had the power to affirm and enforce the Commission's order after it had cross-petitioned for such relief. Cf. Federal Trade Commission v. Ruberoid Co., 1952, 343 U.S. 470, 72 S.Ct. 800. But if the respondent had soght to contest that issue, it could have done so from the start, by raising objections to enforcement of all parts of the Commission's cross-petition. Instead, respondent refused to contest these parts of the Commission's order. Having done so, it removed the question involved in the Ruberoid case from the case.
14
See Dickinson v. Petroleum Conversion Corp., 1950, 338 U.S. 507, 514, 70 S.Ct. 322, 325, 94 L.Ed. 299.
15
See Matton Steamboat Co. v. Murphy, 1943, 319 U.S. 412, 415, 63 S.Ct. 1126, 1128, 87 L.Ed. 1483.
1
See, e.g., 'Though the merits of the cause may have been substantially decided, while any thing, though merely formal, remains to be done, this court cannot pass upon the subject. If from any intermediate stage in the proceedings an appeal might be taken to the supreme court, the appeal might be repeated to the great oppression of the parties.' Chief Justice Marshall speaking for the Court in Life & Fire Ins. Co. of New York v. Adams, 1835, 9 Pet. 573, 602, 9 L.Ed. 234. 'We think that the decree is not a final decree, and that this court has no jurisdiction of the appeal. The decree is not final, because it does not dispose of the entire controversy between the parties.' Keystone Manganese & Iron Co. v. Martin, 132 U.S. 91, 93, 10 S.Ct. 32, 33 L.Ed. 275. 'It is the settled practice of this court, and the same in the King's Bench in England, that the writ will not lie until the whole of the matters in controversy in the suit below are disposed of. * * * The cause is not to be sent up in fragments.' Holcombe v. McKusick, 1857, 20 How. 552, 554, 15 L.Ed. 1020.
2
'Probably no question of equity practice has been the subject of more frequent discussion in this court than the finality of decrees. * * * The cases, it must be conceded, are not altogether harmonious.' McGourkey v. Toledo & Ohio R. Co., 146 U.S. 536, 544—545, 13 S.Ct. 170, 172, 36 L.Ed. 1079. Cf. Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511, 70 S.Ct. 322, 324, 94 L.Ed. 299.
3
A multitude of cases would have supported such a belief on the part of Commission counsel. See, e.g., the following: 'But piecemeal appeals have never been encouraged.' City of Morgantown, W. Va. v. Royal Ins. Co., 337 U.S. 254, 258, 69 S.Ct. 1067, 1070, 93 L.Ed. 1347. 'Congress from the very beginning has, by forbidding piecemeal disposition on appeal of what for practical purposes is a single controversy, set itself against enfeebling judicial administration.' Cobbledick v. United States, 309 U.S. 323, 325, 60 S.Ct. 540, 541, 84 L.Ed. 783. 'The foundation of this policy is not in merely technical conceptions of 'finality.' It is one against piecemeal litigation. 'The case is not to be sent up in fragments * * *.' Luxton v. North River Bridge Co., 147 U.S. 337, 341, 13 S.Ct. 356, 358, 37 L.Ed. 194.' Catlin v. United States, 324 U.S. 229, 233—234, 65 S.Ct. 631, 633—634, 89 L.Ed. 911.
4
'Upon these facts we cannot doubt that the entry of the 28th of November was intended as an order settling the terms of the decree to be entered thereafter; and that the entry made on the 5th of December was regarded both by the court and the counsel as the final decree in the cause.
'We do not question that the first entry had all the essential elements of a final decree, and if it had been followed by no other action of the court, might very properly have been treated as such. But we must be governed by the obvious intent of the Circuit Court, apparent on the face of the proceedings. We must hold, therefore, the decree of the 5th of December to be the final decree.' Rubber Company v. Goodyear, 1867, 6 Wall. 153, 155 156, 18 L.Ed. 762. See also Federal Power Commission v. Idaho Power Co., 344 U.S. 17, 20—21, 73 S.Ct. 85, 86—87; Hill v. Hawes, 320 U.S. 520, 64 S.Ct. 334, 88 L.Ed. 283; United States v. Hark, 320 U.S. 531, 64 S.Ct. 359, 88 L.Ed. 290; Zimmern v. United States, 298 U.S. 167, 56 S.Ct. 706, 80 L.Ed. 1118; City of Memphis v. Brown, 94 U.S. 715, 24 L.Ed. 244.
5
See cases cited in Note 4.
6
Hormel v. Helvering, 312 U.S. 552, 557, 61 S.Ct. 719, 721, 85 L.Ed. 1037. See also Maty v. Grasselli Chemical Co., 303 U.S. 197, 200—201, 58 S.Ct. 507, 509, 82 L.Ed. 745. Cf. Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250.
| 89
|
344 U.S. 228
73 S.Ct. 222
97 L.Ed. 276
F. W. WOOLWORTH CO.v.CONTEMPORARY ARTS, Inc.
No. 42.
Argued Nov. 17, 1952.
Decided Dec. 22, 1952.
Mr. Kenneth W. Greenawalt, New York City, for petitioner.
Mr. Cedric W. Porter, Boston, Mass., for respondent.
Mr. Justice JACKSON delivered the opinion of the Court.
1
Respondent brought this action under the Copyright Act to recover for infringement of copyright on a work of art entitled 'Cocker-Spaniel in Show Position.' The District Court found the copyright, of which respondent was assignee, valid and infringed and awarded statutory damages of $5,000, with a $2,000 attorney's fee. The Court of Appeals affirmed.1 We granted certiorari,2 limiting the issues to the measure of the recovery, as to which conflict appears among lower courts.3
2
Respondent made small sculptures and figurines, among which were statutes of the cocker spaniel, and marketed them chiefly through gift and art shops. Petitioner, from a different source, bought 127 dozen cocker spaniel statuettes and distributed them through thirty-four Woolworth stores. Unbeknown to Woolworth, these dogs had been copied from respondent's and by marketing them it became an infringer.
3
By the Act an infringer becomes liable—
4
'To pay to the copyright proprietor such damages as the copyright proprietor may have suffered due to the infringement, as well as all the profits which the infringer shall have made from such infringement, and in proving profits the plaintiff shall be required to prove sales only, and the defendant shall be required to prove every element of cost which he claims, or in lieu of actual damages and profits, such damages as to the court shall appear to be just, and in assessing such damages the court may, in its discretion, allow the amounts as hereinafter stated * * * and such damages shall in no other case exceed the sum of $5,000 nor be less than the sum of $250, and shall not be regarded as a penalty. * * *' 17 U.S.C. § 101(b), 17 U.S.C.A. § 101(b).
5
Profits made by the petitioner from the infringement were sufficiently proved to enable assessment of that element of liability. Petitioner itself showed, without contradiction, that the 127 dozen dogs were bought at 60 cents apiece and sold for $1.19 each, yielding a gross profit of $899.16. The infringer did not assume the burden, which the statute casts upon it, of proving any other costs that might be deductible, so the gross figure is left to stand as the profit factor of the infringer's total liability.
6
As to the other ingredient in computing liability, damages suffered by the copyright proprietor, the record is inadequate to establish an actually sustained amount. Enough appears to indicate that real and substantial injury was inflicted. Respondent had gross annual income of about $35,000 and engaged only eight employees, indicating its small production. Its statuettes were of three media and prices: red plaster retailed at $4, red porcelain at $9, while a black and white porcelain brought $15. There was evidence that the cheaper infringing statuette was inferior in quality. Respondent proved loss of some customers and offered, but was not allowed, to show complaints from sales outlets about the Woolworth competition, decline in respondent's sales, and eventual abandonment of the line with an unsalable stock on hand. The trial judge excluded or struck most of this testimony on the ground that authority to allow statutory damages rendered proof of actual damage unnecessary. It might have been better practice to have received the evidence, even if it fell short of establishing the measure of liability; for when recovery may be awarded without any proof of injury, it cannot hurt and may aid the exercise of discretion to hear any evidence on the subject that has probative value. However, petitioner cannot complain of this exclusion, which was in response to its objections. At length, the court said: 'If you establish this was an infringement of copyright, it is inescapably clear there is enough evidence in this case upon which to predicate damage up to $5,000. I don't think Mr. Barnes (counsel for defendant) disagrees with that. Do you?' Mr. Barnes: 'No, your honor.'
7
The court, having found infringement, accordingly allowed recovery of 'statutory damages in the amount of Five Thousand Dollars ($5,000) as provided by the Copyright Laws of the United States,' with an injunction and attorney's fee.
8
Petitioner's contention here is that the statute was misapplied because its own gross profit of $899.16 supplied an actual figure which became the exclusive measure of its liability. It argues that an infringing defendant, by coming forward with an undisputed admission of its own profit from the infringement, can tie the hands of the court and limit recovery to that amount. We cannot agree.
9
In Douglas v. Cunningham, 294 U.S. 207, 209, 55 S.Ct. 365, 366, 79 L.Ed. 862, we said:
10
'The phraseology of the section was adopted to avoid the strictness of construction incident to a law imposing penalties, and to give the owner of a copyright some recompense for injury done him, in a case where the rules of law render difficult or impossible proof of damages or discovery of profits.'
11
To fulfill that purpose, the statute has been interpreted to vest in the trial court broad discretion to determine whether it is more just to allow a recovery based on calculation of actual damages and profits, as found from evidence, or one based on a necessarily somewhat arbitrary estimate within the limits permitted by the Act.
12
'In other words, the court's conception of what is just in the particular case, considering the nature of the copyright, the circumstances of the infringement and the like, is made the measure of the damages to be paid, but with the express qualification that in every case the assessment must be within the prescribed limitations, that is to say, neither more than the maximum nor less than the minimum. Within these limitations the court's discretion and sense of justice are controlling, but it has no discretion when proceeding under this provision to go outside of them.' L. A. Westermann Co. v. Dispatch Printing Co., 249 U.S. 100, 106—107, 39 S.Ct. 194, 195, 63 L.Ed. 499.
13
Few bodies of law would be more difficult to reduce to a short and simple formula than that which determines the measure of damage recoverable for actionable wrongs. The necessary flexibility to do justice in the variety of situations which copyright cases present can be achieved only by exercise of the wide judicial discretion within limited amounts conferred by this statute. It is plain that the court's choice between a computed measure of damage and that imputed by statute cannot be controlled by the infringer's admission of his profits which might be greatly exceeded by the damage inflicted. Indeed sales at a small margin might cause more damage to the copyright proprietor than sales of the infringing article at a higher price.
14
Whether discretionary resort to estimation of statutory damages is just should be determined by taking into account both components and the difficulties in the way of proof of either. In this case the profits realized were established by uncontradicted evidence, but the court was within the bounds of its discretion in concluding that the amount of damages suffered was not computable from the testimony. Lack of adequate proof on either element would warrant resort to the statute in the discretion of the court, subject always to the statutory limitations.
15
The case before us illustrates what capricious results would follow from the practice for which petitioner contends. It has admitted gross profits, which make no deduction for sales costs, overheads or taxes and, hence, may appear substantial on this particular record. But gross profits is not what a copyright owner is entitled to recover, but only such profits as remain after the defendant reduces them, as it may, by proof of allowable elements of cost. If we sustain petitioner's contention that profits may be the sole measure of liability as matter of law, such profits could be diminished even to the vanishing point.
16
Net profits realized by a far-flung distributing enterprise like Woolworth's upon sales of a given item in a few of its many stores can be calculated only by a process of allocating overheads, sales expenses, taxes, and a host of items. A plaintiff in the position of the present one could hardly verify or contest such apportionments unless it should audit the whole Woolworth business.
17
Moreover, a rule of liability which merely takes away the profits from an infringement would offer little discouragement to infringers. It would fall short of an effective sanction for enforcement of the copyright policy. The statutory rule, formulated after long experience, not merely compels restitution of profit and reparation for injury but also is designed to discourage wrongful conduct. The discretion of the court is wide enough to permit a resort to statutory damages for such purposes. Even for uninjurious and unprofitable invasions of copyright the court may, if it deems it just, impose a liability within statutory limits to sanction and vindicate the statutory policy.
18
Petitioner cites Sheldon v. Metro-Goldwyn Pictures Corp., 309 U.S. 390, 399, 60 S.Ct. 681, 684, 84 L.Ed. 825, where this Court said that the 'in lieu' clause 'is not applicable here, as the profits have been proved and the only question is as to their apportionment,' a statement on which petitioner leans almost its whole weight. There net profits from exhibition of an infringing picture were found to be $587,604.37. The copyright owner could show no such value to himself of his copyright; indeed, he had negotiated its sale at $30,000. The Court of Appeals cut the award of these actual profits to one fifth thereof, upon the ground that success of the picture had been largely due to factors not contributed by the infringement. The propriety of this reduction was the sole issue before this Court. Petitioner copyright owner asserted that in such circumstances the 'in lieu' clause 'is not involved here.' This Court agreed that under those facts resort to the statute was not appropriate. That case did not present the question now here. Nor does anything in Jewell-LaSalle Realty Co. v. Buck, 283 U.S. 202, 51 S.Ct. 407, 408, 75 L.Ed. 978, in the light of its facts, support petitioner. It holds use of the 'in lieu' clause permissible, 'there being no proof of actual damages,' but it does not hold that partial or unacceptable proof on that subject will preclude resort to the 'in lieu' clause.
19
We think that the statute empowers the trial court in its sound exercise of judicial discretion to determine whether on all the facts a recovery upon proven profits and damages or one estimated within the statutory limits is more just. We find no abuse of that discretion.
20
The judgment below is affirmed.
21
Affirmed.
22
Mr. Justice BLACK, with whom Mr. Justice FRANKFURTER concurs, dissenting.
23
The earthenware dogs found to infringe respondent's copyright were bought by F. W. Woolworth Company in good faith at a total cost of $914.40. Woolworth's total profit from the sale of the dogs was $899.16. The Court now holds that Woolworth must pay the dogs' copyright owner $5,000. This award is said to be allowed by § 101(b) of the Copyright Act, 17 U.S.C. § 101, 17 U.S.C.A. § 101. We do not think that section authorizes any such manifestly unjust exaction. This Court pointed out in Sheldon v. Metro-Goldwyn Pictures Corp., 309 U.S. 390, 400—401, 60 S.Ct. 681, 684, 84 L.Ed. 825, that § 101, like an analogous patent law section, was not intended to award a copyright owner both damages and profits, but only 'one or the other, whichever was the greater.' Under this rule, profits only should be awarded to respondent in this case.
24
Reliance for awarding $5,000 against Woolworth is naturally placed on that provision of § 101(b) which provides for damages not in excess of $5,000 'in lieu of actual damages and profits'. But this Court has said that the purpose of this section was to recompense for injury done 'where the rules of law render difficult or impossible proof of damages or discovery of profits.' Douglas v. Cunningham, 294 U.S. 207, 209, 55 S.Ct. 365, 366, 79 L.Ed. 862. Here proof of profits was neither difficult nor impossible. And in the carefully considered case of Sheldon v. Metro-Goldwyn Pictures Corp., supra, 309 U.S. at page 399, 60 S.Ct. at page 684, Mr. Chief Justice Hughes speaking for the Court declared, '* * * the 'in lieu' clause is not applicable here, as the profits have been proved * * *.' See also to the same effect Davilla v. Brunswick-Balke Collender Co., 2 Cir., 94 F.2d 567; Sammons v. Colonial Press, 1 Cir., 126 F.2d 341. We would adhere to this view and limit this recovery to profits made by Woolworth. This Court should heed the admonition given in the Sheldon case to remember that the object of § 101(b) is not to inflict punishment but to award an injured copyright owner that which in fairness is his 'and nothing beyond this.' Sheldon v. Metro-Goldwyn Pictures Corp., 309 U.S. at page 399, 60 S.Ct. at page 684.
25
The following circumstances bear on the question of unfairness of the amount of damages awarded. Petitioner contended in the Court of Appeals that the district judge did not give it a fair and impartial trial. 'In support of this contention', the Court of Appeals said, 'the appellant points to several instances in the record of irrelevant and prejudicial comments and remarks' made by the trial judge. Considering the judge's remarks as 'both unseemly and uncalled for', the Court of Appeals said:
26
'But after careful consideration of the record as a whole we have concluded that the particular remarks of the judge which would better have been left unsaid, and are better not quoted, do not rise to the seriousness of reversible error. Having regard for the convincing nature of the plaintiff's proof, and the unconvincing nature of that of the defendant, we do not feel that the decision reached by the court below can be attributed to bias and prejudice. That is to say, we feel that the defendant really had a fair and impartial trial.' 193 F.2d 162, 169.
27
We accept the Court of Appeals' appraisal of the consequences of the judge's remarks on the factual issue of copyright infringement. But here the trial judge gave judgment for statutory damages in an amount that smacks of punitive qualities. And this Court has held that the amount of such damages is committed to the unreviewable discretion of a trial judge. Douglas v. Cunningham, 294 U.S. 207, 210, 55 S.Ct. 365, 366, 79 L.Ed. 862. In view of the remarks of the trial judge directed against the Woolworth Company, we think it had a just right to complain that the amount of damages imposed ought not to stand.
28
We would reverse and remand this case for a new trial by another judge.
1
193 F.2d 162.
2
343 U.S. 963, 72 S.Ct. 1061.
3
F. W. Woolworth Co. v. Contemporary Arts, 1 Cir., 193 F.2d 162, 167—169; Sammons v. Colonial Press, 1 Cir., 126 F.2d 341, 350; Davilla v. Brunswick-Balke Collender Co., 2 Cir., 94 F.2d 567; Malsed v. Marshall Field & Co., D.C., 96 F.Supp. 372, 376 377.
| 78
|
344 U.S. 218
73 S.Ct. 227
97 L.Ed. 260
UNITED STATESv.UNIVERSAL C.I.T. CREDIT CORP. et al.
No. 47.
Argued Nov. 18 and 19, 1952.
Decided Dec. 22, 1952.
Mr. John F. Davis, Washington, D.C., for appellant.
Melbourne Bergerman, New York City, for appellees.
Mr. Justice FRANKFURTER delivered the opinion of the Court.
1
This case arises on an information under §§ 15 and 16(a) of the Fair Labor Standards Act, 52 Stat. 1060, as amended, 63 Stat. 910, 29 U.S.C., §§ 215, 216(a), 29 U.S.C.A. §§ 215, 216(a), charging the defendant corporation, its division operations manager and two successive branch managers with violations of the minimum wage, overtime, and record-keeping provisions of the Act.1 Thirty-two counts were laid: six for failure under § 6 of the Act to pay minimum wages, twenty for violation of the overtime provisions of § 7, and six for failure to comply with the requirements for record-keeping under § 11. Counts 1—6 charge minimum wage violations in six separate weeks, one per week, but only as to one employee in any one week and only as to three employees in all. Counts 7—26 charge overtime violations in twenty separate weeks, one per week. A total of eleven employees are involved, two violations having been charged as to each of nine employees. Counts 27—32 charge record-keeping violations as to four employees, two violations as to each of two employees being charged. Section 16 of the Act subjects an employer, offending for the first time, to a maximum fine of $10,000 for violation of any provision of § 15, and would, the District Court assumed, authorize a fine of $320,000 upon conviction under this information.2
2
Rejecting a reading of § 15 whereby the prosecutor could treat as a separate offense each breach of the statutory duty owed to a single employee during any single workweek,3the District Court granted defendant's motion to dismiss all but three counts of the information. The court held that it is a course of conduct rather than the separate items in such course that constitutes the punishable offense and ordered consolidation of the separate acts set forth in the information into three counts, charging one violation each of §§ 6, 7 and 11.4 To review this decision, the Government brought the case here under the Criminal Appeals Act, 34 Stat. 1246, 18 U.S.C. § 3731, 18 U.S.C.A. § 3731.
3
The problem of construction of the criminal provisions of the Fair Labor Standards Act is not easy of solution. What Congress has made the allowable unit of prosecution—the only issue before us—cannot be answered merely by a literal reading of the penalizing sections. Generalities about statutory construction help us little. They are not rules of law but merely axioms of experience. Boston Sand & Gravel Co. v. United States, 278 U.S. 41, 48, 49 S.Ct. 52, 53, 73 L.Ed. 170. They do not solve the special difficulties in construing a particular statute. The variables render every problem of statutory construction unique. See United States v. Jin Fuey Moy, 241 U.S. 394, 402, 36 S.Ct. 658, 659, 60 L.Ed. 1061. For that reason we may utilize, in construing a statute not unambiguous, all the light relevantly shed upon the words and the clause and the statute that express the purpose of Congress. Very early Chief Justice Marshall told us, 'Where the mind labours to discover the design of the legislature, it seizes every thing from which aid can be derived * * *.' United States v. Fisher, 2 Cranch 358, 386, 2 L.Ed. 304. Particularly is this so when we construe statutes defining conduct which entail stigma and penalties and prison. Not that penal statutes are not subject to the basic consideration that legislation like all other writings should be given, insofar as the language permits, a commonsensical meaning. But when choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite. We should not derive criminal outlawry from some ambiguous implication.
4
The penal provision of the Fair Labor Standards Act is only part of a scheme available to the Government and to the employee for enforcing the Act. The preventive remedy of an injunction and individual or class actions for restitution and damages in § 16(b) are not only also available. They are the remedies more frequently invoked and more effective in achieving the purposes of the Act. Of course the various remedies must be read in relation to each other. But we are asked here in addition to infer that an employer's failure to perform his obligations as to each employee creates a separate criminal offense because the provisions for civil liability in § 16(b) expressly recognize a right in the individual employee to maintain a separate action against his employer for restitution and damages. The argument cuts both ways. If Congress had wanted to attach criminal consequences to each separate civil liability it could easily have said so, just as it had no difficulty in stating explicitly that the unit for civil liability was what was owing to each employee. Instead of balancing the various generalized axioms of experience in construing legislation, regard for the specific history of the legislative process that culminated in the Act now before us affords more solid ground for giving it appropriate meaning.
5
When originally introduced in Congress, the bill out of which the Fair Labor Standards Act evolved had two separate penalty provisions, one for underpayments in violation of §§ 6 or 7 and one for failure to comply with the record-keeping provisions of § 11.5 Each provision set the maximum fine at $500 and explicitly defined what constituted a separate offense. As to §§ 6 and 7 the employee was the unit of criminal offense and as to § 11 each week of violation was a separate offense.6 After the measure would its way through a long legislative process there resulted consolidation of the two penalty provisions, elimination of the separate offense clauses, and substitution of $10,000 for $500 as the maximum fine. These rather striking changes would in themselves afford justifiable ground for giving the less harsh and therefore more reasonable construction to the offense-creating portions of the legislation. In addition, we have illuminating statements in both houses concerning the separation of offenses. Although the separate offense clause for record-keeping violations was deleted early in the legislative process, the other separate offense clause was attacked in debate precisely because it would authorize the sort of multiplication of offenses by the number of employees that the information before us represents.7 Indeed multiplication in this information goes beyond what even the original bills would have authorized. Underpayments of the same employees are split into separate counts of the information, and record-keeping violations during the same week are split to serve as the basis of separate counts.
6
It would be self-deceptive to claim that only one answer is possible to our problem. But the history of this legislation and the inexplicitness of its language weigh against the Government's construction of a statute that cannot be said to be decisively clear on its face one way or the other. Because of the history and language of this legislation, the case is not attracted by the respective authority of two cases pressed upon us. In re Snow, 120 U.S. 274, 7 S.Ct. 556, 30 L.Ed. 658, and Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306.
7
The district judge was therefore correct in rejecting the Government's construction of the statute. The offense made punishable under the Fair Labor Standards Act is a course of conduct. Such a reading of the statute compendiously treats as one offense all violations that arise from that singleness of thought, purpose or action, which may be deemed a single 'impulse,' a conception recognized by this Court in the Blockburger case, supra, 284 U.S. at page 302, 52 S.Ct. at page 181, quoting Wharton's Criminal Law, 11th ed. § 34. Merely to illustrate, without attempting to rule on specific situations: a wholly unjustifiable managerial decision that a certain activity was not work and therefore did not require compensation under F.L.S.A. standards cannot be turned into a multiplicity of offenses by considering each underpayment in a single week or to a single employee as a separate offense.
8
However, a wholly distinct managerial decision that piece workers should be paid less than the statutory requirement in terms of hourly rates, see United States v. Rosenwasser, 323 U.S. 360, 65 S.Ct. 295, 89 L.Ed. 301, involves a different course of conduct, and so would constitute a different offense. Thus, underpayments based on violations of the statute as to these piece workers could not be compounded into a single offense with unrelated underpayments which resulted from the decision that a certain activity was not work, merely because the two kinds of underpayments occurred in the same workweek or involved the same employee. Whether an aggregate of acts constitute a single course of conduct and therefore a single offense, or more than one, may not be capable of ascertainment merely from the bare allegations of an information and may have to await the trial on the facts.
9
This information is based on what we find to be an improper theory. But a draftsman of an indictment may charge crime in a variety of forms to avoid fatal variance of the evidence. He may cast the indictment in several counts whether the body of facts upon which the indictment is based gives rise to only one criminal offense or to more than one. To be sure, the defendant may call upon the prosecutor to elect or, by asking for a bill of particulars, to render the various counts more specific. In any event, by an indictment of multiple counts the prosecutor gives the necessary notice and does not do the less so because at the conclusion of the Government's case the defendant may insist that all the counts are merely variants of a single offense.
10
By affirming this order without prejudice to amendment of the information, we do not mean to suggest that amendment to increase the number of offenses may be made after trial has begun. But the Government is not precluded from now amending the information either to meet the exigencies of the evidence or to charge as separate offenses separate courses of conduct as to each substantive provision. All we now decide is that the district judge correctly held that a single course of conduct does not constitute more than one offense under § 15 of the Fair Labor Standards Act.
11
Without prejudice to amendment of the information before trial if the evidence to be offered warrants it, the order below is affirmed.
12
Affirmed.
13
Mr. Justice DOUGLAS, dissenting.
14
I think the question whether an employer has violated the criminal provisions of the Act is determined by reference to what he has done to a particular employee. The Act does not speak of 'course of conduct.' That is the Court's terminology, not the Act's. The Act requires the employer to pay 'each of his employees' not less than 75 cents an hour, prohibits him from employing 'any of his employees' for more than 40 hours a week unless overtime is paid, and requires him to keep records of 'the persons employed by him' and the wages, hours, etc. 29 U.S.C. §§ 206, 207, 211(c), as amended, 29 U.S.C.A. §§ 206, 207, 211(c). And the Act makes it unlawful for an employer to violate 'any of the provisions' of those sections. 29 U.S.C. §§ 215, 216(a), 29 U.S.C.A. §§ 215, 216(a).
15
It therefore seems clear to me that if an employer pays one employee less than 75 cents an hour or fails to pay overtime to one employee, or fails to keep the required records for one employee a crime has been established, if scienter is shown. And it seems equally clear to me that if an employer wilfully fails to pay one employee the minimum wage, and wilfully fails to pay him the required overtime, and wilfully fails to keep the required records for him, three crimes have been committed. The crime is defined with reference to the individual employee. The crime may be a single, isolated act. It may or may not be recurring or continuous. The violation may affect one employee one week or one month and another employee another week or another month; and it may affect one employee in one way, another employee in a different way. The violations may be continuous, and follow a set pattern; or they may be sporadic and erratic. The Act does not differentiate between them. Nothing is said about 'course of conduct.' Perhaps a committee of Congress would be receptive to the suggestion now made. But it should be received there, not here. Of course, horrendous possibilities can be envisaged under almost every law. But the prosecutors who enforce this Act, the grand juries who hear the evidence on violations, and the District Courts who apply the sanctions have to date not made these criminal provisions oppressive and beyond reason. Yet until this case no court, so far as I can learn, has ever had the inventive genius to suggest that 'course of conduct' rather than the 'employee' is the unit of the crime.
1
The criminal enforcement provisions of the Fair Labor Standards Act are §§ 15 and 16. Section 16 provides a maximum fine of $10,000 for '(a)ny person who willfully violates any of the provisions of section 15 * * *.' Section 15 makes it 'unlawful for any person * * * (2) to violate any of the provisions of section 6 or section 7 * * *; * * * (5) to violate any of the provisions of section 11(c) * * *.' Section 6 provides, 'Every employer shall pay to each of his employees who is engaged in commerce or in the production of goods for commerce * * * not less than 75 cents an hour; * * *.' Section 7 provides '* * * no employer shall employ any of his employees who is engaged in commerce or in the production of goods for commerce for a workweek longer than forty hours, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.' Section 11(c) requires the employer to 'make, keep, and preserve such records of the persons employed by him and of the wages, hours, and other conditions and practices of employment maintained by him, and shall preserve such records for such periods of time, and shall make such reports therefrom to the Administrator as he shall prescribe by regulation or order * * *.'
2
102 F.Supp. 179, 186, modified by Order dated March 10, 1952, R. 20.
3
The Government urges that the Act be construed 'to punish each failure to comply with each duty imposed by the Act as to each employee in each workweek and as to each record required to be kept.' Brief for United States, p. 10. However, in none of the first 26 counts, charging minimum wage or overtime underpayments, were similar violations charged as to two employees in the same week, so that it would be sufficient in this case to urge that the violations may be split according to the workweek, rather than also according to the employee. As to the last six counts, charging record-keeping violations, it might have been possible for the Government to urge less than that each record required to be kept is a separate offense. With one minor exception, violations were alleged as to at least two employees in every workweek for which record-keeping violations were charged. The workweek was not the unit of prosecution, since the periods of time in these six counts range from about seven weeks to over six months. But the employee was also not the unit, since although violations as to each employee were made into separate charges, two employees are the subject of two charges apiece.
Whatever differences exist between the minimum necessary to sustain this particular information and the claim made by the Government are immaterial, in view of our disposition of the case.
4
Appellee does not urge in this case that § 15 prescribes only one offense even if there are three kinds of violations. Such an argument seems to have been made and was rejected, as to distinct requirements under two different sections of the act there involved, in Blockburger v. United States, 284 U.S. 299, 305, 52 S.Ct. 180, 182, 76 L.Ed. 306, where the penal provision applied to 'any person who violates or fails to comply with any of the requirements of this act'.
5
See §§ 27(a) and 27(b) in S. 2475 and H.R. 7200, 75th Cong., 1st sess.
6
In § 27(a), the clause read: 'Where the employment of an employee in violation of any provision of this Act or of a labor-standard order is unlawful, each employee so employed in violation of such provision shall constitute a separate offense.' In § 27(b), the clause was: '* * * and each week of such failure to keep the records required under this Act or to furnish same to the Board or any authorized representative of the Board shall constitute a separate offense.
7
See 81 Cong.Rec. 7792; 81 Cong.Rec. 9507; 82 Cong.Rec. 1828. Force is added to these statements by the fact that one was made by a member of the House who proposed the amendment which was adopted, by vote on division, specifically to delete the separate offense clause of § 27(a) (then 22(a)). 82 Cong.Rec. 1828—1839. The bill thus came to the Conference from the House with both separate offense clauses deleted, but from the Senate with only the clause of § 27(b) deleted. Both versions still provided a maximum fine of $500. The Conference accepted the House version, with neither separate offense clause, but raised the maximum fine to $10,000. See S. 2475, 75th Cong., 1st Sess., §§ 23(a), 23(b), as reported from Committee, July 8, 1937; 81 Cong.Rec. 7957; H.R.Rep.No.2182, 75th Cong., 3d Sess. 5; 83 Cong.Rec. 7450; Conference Report, § 16(a), 83 Cong.Rec. 9249.
| 67
|
344 U.S. 280
73 S.Ct. 252
97 L.Ed. 319
STEELE et al.v.BULOVA WATCH CO., Inc.
No. 38.
Argued Nov. 10, 1952.
Decided Dec. 22, 1952.
Mr. Wilbur L. Matthews, San Antonio, Tex., for petitioners.
Marx Leva, Washington, D.C. (Alexander B. Hawes, A. Lloyd Symington, Washington, D.C., Sanford H. Cohen, George Cohen, New York City, Isidor Ostroff, Washington, D.C., and Maury Maverick, San Antonio, Tex., on the brief), for respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
The issue is whether a United States District Court has jurisdiction to award relief to an American corporation against acts of trade-mark infringement and unfair competition consummated in a foreign country by a citizen and resident of the United States. Bulova Watch Company, Inc., a New York corporation, sued Steele,1 petitioner here, in the United States District Court for the Western District of Texas. The gist of its complaint charged that 'Bulova,' a trade-mark properly registered under the laws of the United States, had long designated the watches produced and nationally advertised and sold by the Bulova Watch Company; and that petitioner, a United States citizen residing in San Antonio, Texas, conducted a watch business in Mexico City where, without Bulova's authorization and with the purpose of deceiving the buying public, he stamped the name 'Bulova' on watches there assembled and sold. Basing its prayer on these asserted violations of the trade-mark laws of the United States,2 Bulova requested injunctive and monetary relief. Personally served with process in San Antonio, petitioner answered by challenging the court's jurisdiction over the subject matter of the suit and by interposing several defenses, including his due registration in Mexico of the mark 'Bulova' and the pendency of Mexican legal proceedings thereon, to the merits of Bulova's claim. The trial judge, having initially reserved disposition of the jurisdictional issue until a hearing on the merits, interrupted the presentation of evidence and dismissed the complaint 'with prejudice,' on the ground that the court lacked jurisdiction over the cause. This decision rested on the court's findings that petitioner had committed no illegal acts within the United States.3 With one judge dissenting, the Court of Appeals reversed; it held that the pleadings and evidence disclosed a cause of action within the reach of the Lanham Trade-Mark Act of 1946, 15 U.S.C. 1051 et seq., 15 U.S.C.A. § 1051 et seq.4 The dissenting judge thought that 'since the conduct complained of substantially related solely to acts done and trade carried on under full authority of Mexican law, and were confined to and affected only that Nation's internal commerce, (the District Court) was without jurisdiction to enjoin such conduct.'5 We granted certiorari, 343 U.S. 962, 72 S.Ct. 1060.
2
Petitioner concedes, as he must, that Congress in prescribing standards of conduct for American citizens may project the impact of its laws beyond the territorial boundaries of the United States. Cf. Foley Bros., Inc. v. Filardo, 1949, 336 U.S. 281, 284 285, 69 S.Ct. 575, 577, 93 L.Ed. 680; Blackmer v. United States, 1932, 284 U.S. 421, 436—437, 52 S.Ct. 252, 254, 76 L.Ed. 375; Branch v. Federal Trade Commission, 7 Cir., 1944, 141 F.2d 31. Resolution of the jurisdictional issue in this case therefore depends on construction of exercised congressional power, not the limitations upon that power itself. And since we do not pass on the merits of Bulova's claim, we need not now explore every facet of this complex6 and controversial7 Act.
3
The Lanham Act, on which Bulova posited its claims to relief, confers broad jurisdictional powers upon the courts of the United States. The statute's expressed intent is 'to regulate commerce within the control of Congress by making actionable the deceptive and misleading use of marks in such commerce; to protect registered marks used in such comme(r)ce from interference by State, or territorial legislation; to protect persons engaged in such commerce against unfair competition; to prevent fraud and deception in such commerce by the use of reproductions, copies, counterfeits, or colorable imitations of registered marks; and to provide rights and remedies stipulated by treaties and conventions respecting trade-marks, trade names, and unfair competition entered into between the United States and foreign nations.' § 45, 15 U.S.C. § 1127, 15 U.S.C.A. § 1127. To that end, § 32(1) holds liable in a civil action by a trade-mark registrant '(a)ny person who shall, in commerce,' infringe a registered trade-mark in a manner there detailed.8 'Commerce' is defined as 'all commerce which may lawfully be regulated by Congress.' § 45, 15 U.S.C. § 1127, 15 U.S.C.A. § 1127. The district courts of the United States are granted jurisdiction over all actions 'arising under' the Act, § 39, 15 U.S.C. § 1121, 15 U.S.C.A. § 1121, and can award relief which may include injunctions,9 'according to the principles of equity,' to prevent the violation of any registrant's rights. § 34, 15 U.S.C. § 1116, 15 U.S.C.A. § 1116.
4
The record reveals the following significant facts which for purposes of a dismissal must be taken as true: Bulova Watch Company, one of the largest watch manufacturers in the world, advertised and distributed 'Bulova' watches in the United States and foreign countries. Since 1929, its aural and visual advertising, in Spanish and English, has penetrated Mexico. Petitioner, long a resident of San Antonio, first entered the watch business there in 1922, and in 1926 learned of the trade-mark 'Bulova.' He subsequently transferred his business to Mexico City and, discovering that 'Bulova' had not been registered in Mexico, in 1933 procured the Mexican registration of that mark. Assembling Swiss watch movements and dials and cases imported from that country and the United States, petitioner in Mexico City stamped his watches with 'Bulova' and sold them as such. As a result of the distribution of spurious 'Bulovas,' Bulova Watch Company's Texas sales representative received numerous complaints from retail jewelers in the Mexican border area whose customers brought in for repair defective 'Bulovas' which upon inspection often turned out not to be products of that company. Moreover, subsequent to our grant of certiorari in this case the prolonged litigation in the courts of Mexico has come to an end. On October 6, 1952, the Supreme Court of Mexico rendered a judgment upholding an administrative ruling which had nullified petitioner's Mexican registration of 'Bulova.'10
5
On the facts in the record we agree with the Court of Appeals that petitioner's activities, when viewed as a whole, fall within the jurisdictional scope of the Lanham Act. This Court has often stated that the legislation of Congress will not extend beyond the boundaries of the United States unless a contrary legislative intent appears. E.g., Blackmer v. United States, 1932, 284 U.S. 421, 437, 52 S.Ct. 252, 254, 76 L.Ed. 375; Foley Bros., Inc. v. Filardo, 1949, 336 U.S. 281, 285, 69 S.Ct. 575, 577, 93 L.Ed. 680. The question thus is 'whether Congress intended to make the law applicable' to the facts of this case. Ibid. For 'the United States is not debarred by any rule of international law from governing the conduct of is own citizens upon the high seas or even in foreign countries when the rights of other nations or their nationals are not infringed. With respect to such an exercise of authority there is no question of international law, but solely of the purport of the municipal law which establishes the duty of the citizen in relation to his own government.' Skiriotes v. State of Florida, 1941, 313 U.S. 69, 73, 61 S.Ct. 924, 927, 85 L.Ed. 1193.11 As Mr. Justice Minton, then sitting on the Court of Appeals, applied the principle in a case involving unfair methods of competition: 'Congress has the power to prevent unfair trade practices in foreign commerce by citizens of the United States, although some of the acts are done outside the territorial limits of the United States.' Branch v. Federal Trade Commission, 7 Cir., 1944, 141 F.2d 31, 35. Nor has this Court in tracing the commerce scope of statutes differentiated between enforcement of legislative policy by the Government itself or by private litigants proceeding under a statutory right. Thomsen v. Cayser, 1917, 243 U.S. 66. 37 S.Ct. 353, 61 L.Ed. 597; Mandeville Island Farms v. American Crystal Sugar Co., 1948, 334 U.S. 219, 68 S.Ct. 996, 92 L.Ed. 1328; cf. Vermilya-Brown Co. v. Connell, 1948, 335 U.S. 377, 69 S.Ct. 140, 93 L.Ed. 76; Foley Bros., Inc., v. Filardo, supra. The public policy subserved is the same in each case. In the light of the broad jurisdictional grant in the Lanham Act, we deem its scope to encompass petitioner's activities here. His operations and their effects were not confined within the territorial limits of a foreign nation. He bought component parts of his wares in the United States, and spurious 'Bulovas' filtered through the Mexican border into this country; his competing goods could well reflect adversely on Bulova Watch Company's trade reputation in markets cultivated by advertising here as well as abroad. Under similar factual circumstances, courts of the United States have awarded relief to registered trademark owners, even prior to the advent of the broadened commerce provisions of the Lanham Act.12 George W. Luft Co. v. Zande Cosmetic Co., 2 Cir., 1944, 142 F.2d 536; Hecker H-O Co. v. Holland Food Corp., 2 Cir., 1929, 36 F.2d 767; Vacuum Oil Co. v. Eagle Oil Co., C.C.1907, 154 F. 867, affirmed, C.C.1908, 162 F. 671. Cf. Morris v. Altstedter, 93 Misc. 329, 156 N.Y.S. 1103, affirmed, 1916, 173 App.Div. 932, 158 N.Y.S. 1123. Even when most jealously read, that Act's sweeping reach into 'all commerce which may lawfully be regulated by Congress' does not constrict prior law or deprive courts of jurisdiction previously exercised. We do not deem material that petitioner affixed the mark 'Bulova' in Mexico City rather than here,13 or that his purchases in the United States when viewed in isolation do not violate any of our laws. They were essential steps in the course of business consummated abroad; acts in themselves legal lose that character when they become part of an unlawful scheme. United States v. Bausch & Lomb Optical Co., 1944, 321 U.S. 707, 720, 64 S.Ct. 805, 812, 88 L.Ed. 1024; United States v. Univis Lens Co., 1942, 316 U.S. 241, 254, 62 S.Ct. 1088, 1095, 86 L.Ed. 1408. '(I)n such a case it is not material that the source of the forbidden effects upon * * * commerce arises in one phase or another of that program.' Mandeville Island Farms v. American Crystal Sugar Co., 1948, 334 U.S. 219, 237, 68 S.Ct. 996, 1006, 92 L.Ed. 1328. Cf. United States v. Frankfort Distilleries, 1945, 324 U.S. 293, 297 298, 65 S.Ct. 661, 663—664, 89 L.Ed. 951. In sum, we do not think that petitioner by so simple a device can evade the thrust of the laws of the United States in a privileged sanctuary beyond our borders.
6
American Banana Co. v. United Fruit Co., 1909, 213 U.S. 347, 29 S.Ct. 511, 53 L.Ed. 826, compels nothing to the contrary. This Court there upheld a Court of Appeals' affirmance of the trial court's dismissal of a private damage action predicated on alleged violations of the Sherman Act, 15 U.S.C.A. §§ 1—7, 15 note.14 The complaint, in substance, charged United Fruit Company with monopolization of the banana import trade between Central America and the United States, and with the instigation of Costa Rican governmental authorities to seize plaintiff's plantation and produce in Panama. The Court of Appeals reasoned that plaintiff had shown no damage from the asserted monopoly and could not found liability on the seizure, a sovereign act of another nation.15 This Court agreed that a violation of American laws could not be grounded on a foreign nation's sovereign acts. Viewed in its context, the holding in that case was not meant to confer blanket immunity on trade practices which radiate unlawful consequences here, merely because they were initiated or consummated outside the territorial limits of the United States. Unlawful effects in this country, absent in the posture of the Banana case before us, are often decisive; this Court held as much in Thomsen v. Cayser, 1917, 243 U.S. 66, 37 S.Ct. 353, 61 L.Ed. 597, and United States v. Sisal Sales Corp., 1927, 274 U.S. 268, 47 S.Ct. 592, 71 L.Ed. 1042.16 As in Sisal, the crux of the complaint here is 'not merely of something done by another government at the instigation of private parties'; petitioner by his 'own deliberate acts, here and elsewhere, * * * brought about forbidden results within the United States.' 274 U.S. at page 276, 47 S.Ct. at page 594, 71 L.Ed. 1042. And, unlike the Banana case, whatever rights Mexico once conferred on petitioner its courts now have decided to take away.
7
Nor do we doubt the District Court's jurisdiction to award appropriate injunctive relief if warranted by the facts after trial. 15 U.S.C. §§ 1116, 1121, 15 U.S.C.A. §§ 1116, 1121. Mexico's courts have nullified the Mexican registration of 'Bulova'; there is thus no conflict which might afford petitioner a pretext that such relief would impugn foreign law. The question, therefore, whether a valid foreign registration would affect either the power to enjoin or the propriety of its exercise is not before us. Where, as here, there can be no interference with the sovereignty of another nation, the District Court in exercising its equity powers may command persons properly before it to cease or perform acts outside its territorial jurisdiction. State of New Jersey v. City of New York, 1931, 283 U.S. 473, 51 S.Ct. 519, 75 L.Ed. 1176; Massie v. Watts, 1810, 6 Cranch 148, 3 L.Ed. 181; The Salton Sea Cases, 9 Cir., 1909, 172 F. 792; cf. United States v. National Lead Co., 1947, 332 U.S. 319, 351—352, 363, 67 S.Ct. 1634, 1649, 1655, 91 L.Ed. 2077.17
8
Affirmed.
9
Mr. Justice BLACK took no part in the decision of this case.
10
Mr. Justice REED, with whom Mr. Justice DOUGLAS joins, dissenting.
11
The purpose of the Lanham Act is to prevent deceptive and misleading use of trade-marks. § 45, 15 U.S.C. § 1127, 15 U.S.C.A. § 1127. To further that purpose the Act makes liable in an action by the registered holder of the trade-mark 'any person who shall, in commerce,' infringe such trade-mark. § 32(1), 15 U.S.C. § 1114(1), 15 U.S.C.A. § 1114(1). 'Commerce' is defined as being 'all commerce which may lawfully be regulated by Congress.' § 45, 15 U.S.C. § 1127, 15 U.S.C.A. § 1127.
12
The Court's opinion bases jurisdiction on the Lanham Act. In the instant case the only alleged acts of infringement occurred in Mexico. The acts complained of were the stamping of the name 'Bulova' on watches and the subsequent sale of the watches. There were purchases of assembly material in this country by petitioners. Purchasers from petitioners in Mexico brought the assembled watches into the United States. Assuming that Congress has the power to control acts of our citizens throughout the world, the question presented is one of statutory construction: Whether Congress intended the Act to apply to the conduct here exposed.
13
'The canon of construction which teaches that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States, Blackmer v. United States, 284 U.S. (421), at 437, 52 S.Ct. (252), at page 254, 76 L.Ed. 375, is a valid approach whereby unexpressed congressional intent may be ascertained.' Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285, 69 S.Ct. 575, 577, 93 L.Ed. 680. Utilizing this approach, does such a contrary intent appear in the Lanham Act? If it does, it appears only in broad and general terms, i.e., 'to regulate commerce within the control of Congress * * *.' § 45, 15 U.S.C. § 1127, 15 U.S.C.A. § 1127. Language of such nonexplicit scope was considered by the Court in construing the Sherman Act in American Banana Co. v. United Fruit Co., 213 U.S. 347, 357, 29 S.Ct. 511, 513, 53 L.Ed. 826. 'Words having universal scope, such as 'every contract in restraint of trade,' 'every person who shall monopolize,' etc., will be taken, as a matter of course, to mean only everyone subject to such legislation, not all that the legislator subsequently may be able to catch.' The American Banana Co. case confined the Sherman Act in its 'operation and effect to the territorial limits over which the law-maker has general and legitimate power.' 213 U.S. at page 357, 29 S.Ct. at page 513, 53 L.Ed. 826. This was held to be true as to acts outside the United States, although the parties were all corporate citizens of the United States subject to process of the federal courts.
14
The generally phrased congressional intent in the Lanham Act is to be compared with the language of the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., which we construed in Vermilya-Brown Co. v. Connell, 335 U.S. 377, 69 S.Ct. 140, 93 L.Ed. 76. There we held that by explicitly stating that the Act covered 'possessions' of the United States, Congress had intended that the Act was to be in effect in all 'possession' and was not to be applied merely in those areas under the territorial jurisdiction or sovereignty of the United States.
15
There are, of course, cases in which a statement of specific contrary intent will not be deemed so necessary. Where the case involves the construction of a criminal statute 'enacted because of the right of the government to defend itself against obstruction, or fraud * * * committed by its own citizens,' it is not necessary for Congress to make specific provisions that the law 'shall include the high seas and foreign countries'. United States v. Bowman, 260 U.S. 94, 98, 43 S.Ct. 39, 41, 67 L.Ed. 149. This is also true when it is a question of the sovereign power of the United States to require the response of a nonresident citizen. Blackmer v. United States, 284 U.S. 421, 52 S.Ct. 252, 76 L.Ed. 375. A similar situation is met where a statute is applied to acts committed by citizens in areas subject to the laws of no sovereign. See Skiriotes v. State of Florida, 313 U.S. 69, 61 S.Ct. 924, 85 L.Ed. 1193; Old Dominion S. S. Co. v. Gilmore, 207 U.S. 398, 28 S.Ct. 133, 52 L.Ed. 264.
16
In the instant case none of these exceptional considerations come into play. Petitioner's buying of unfinished watches in the United States is not an illegal commercial act. Nor can it be said that petitioners were engaging in illegal acts in commerce when the finished watches bearing the Mexican trade-mark were purchased from them and brought into the United States by such purchasers, all without collusion between petitioner and the purchaser. The stamping of the Bulova trade-mark, done in Mexico, is not an act 'within the control of Congress.' It should not be utilized as a basis for action against petitioner. The Lanham Act, like the Sherman Act, should be construed to apply only to acts done within the sovereignty of the United States. While we do not condone the piratic use of trade-marks, neither do we believe that Congress intended to make such use actionable irrespective of the place it occurred. Such extensions of power bring our legislation into conflict with the laws and practices of other nations, fully capable of punishing infractions of their own laws, and should require specific words to reach acts done within the territorial limits of other sovereignties.
1
Joined as parties defendant were S. Steele y Cia., S.A., a Mexican corporation to whose rights Steele had succeeded, and Steele's wife Sofia who possessed a community interest under Texas law.
2
While the record shows that plaintiff fully relied on his asserted cause of action 'arising under' the Lanham Act, diversity of citizenship and the jurisdictional amount were also averred. As we are concerned solely with the District Court's jurisdiction over the subject matter of this suit, we do not stop to consider the significance, if any, of those averments. Cf. Pecheur Lozenge Co. v. National Candy Co., 1942, 315 U.S. 666, 62 S.Ct. 853, 86 L.Ed. 1103, decided prior to passage of the Lanham Act. See also note 6, infra.
3
The District Court's unreported findings of fact and conclusions of law, as amended, appear at R. 246—248. Cf. R. 232, 237.
4
5 Cir., 1952, 194 F.2d 567.
5
Id., 194 F.2d at page 573.
6
For able Court of Appeals discussions of the impact of Erie R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, on the law prior and subsequent to the Lanham Act, see Dad's Root Beer Co. v. Doc's Beverages, Inc., 2 Cir., 1951, 193 F.2d 77; S. C. Johnson & Son v. Johnson, 2 Cir., 1949, 175 F.2d 176; Campbell Soup Co. v. Armour & Co., 3 Cir., 1949, 175 F.2d 795; Stauffer v. Exley, 9 Cir., 1950, 184 F.2d 962. See also National Fruit Product Co. v. Dwinell-Wright Co., D.C.1942, 47 F.Supp. 499. And see Zlinkoff, Erie v. Tompkins: In Relation to the Law of Trade-Marks and Unfair Competition, 42 Col.L.Rev. 955 (1942); Bunn, The National Law of Unfair Competition, 62 Harv.L.Rev. 987 (1949).
7
See, e.g., Timberg, Trade-Marks, Monopoly, and the Restraints of Competition, 14 Law & Contemp. Probs. 323 (1949); cf. Brown, Advertising and the Public Interest: Legal Protection of Trade Symbols, 57 Yale L.J. 1165 (1948). Compare, e.g., Pattishall, Trade-Marks and The Monopoly Phobia, 50 Mich.L.Rev. 967 (1952); Rogers, The Lanham Act and The Social Function of Trade-Marks, 14 Law & Contemp. Probs. 173 (1949).
8
'Any person who shall, in commerce, (a) use, without the consent of the registrant, any reproduction, counterfeit, copy, or colorable imitation of any registered mark in connection with the sale, offering for sale, or advertising of any goods or services on or in connection with which such use is likely to cause confusion or mistake or to deceive purchasers as to the source of origin of such goods or services; or (b) reproduce, counterfeit, copy, or colorably imitate any such mark and apply such reproduction, counterfeit, copy, or colorable imitation to labels, signs, prints, packages, wrappers, receptacles, or advertisements intended to be used upon or in connection with the sale in commerce of such goods or services, shall be liable to a civil action by the registrant for any or all of the remedies hereinafter provided in this chapter, * * *.' 15 U.S.C. § 1114(1), 15 U.S.C.A. § 1114(1).
9
See also § 35, 15 U.S.C. § 1117, 15 U.S.C.A. § 1117 (profits, damages and costs); § 36, 15 U.S.C. § 1118, 15 U.S.C.A. § 1118 (destruction of infringing articles); § 38, 15 U.S.C. § 1120, 15 U.S.C.A. § 1120 (damages for fraudulent registration).
10
Sidney Steele v. Secretary of the National Economy, decided by the Second Court of the Supreme Court of Mexico. That decision is reprinted, as translated, as Appendix III to respondent's brief.
11
See, e.g., 1 Oppenheim, International Law (6th ed., Lauterpacht, 1947) § 145, p. 297.
12
Cf. 15 U.S.C. §§ 96, 124, requiring the infringing use to be 'in commerce among the several States, or with a foreign nation'. United States Printing & Lithograph Co. v. Griggs, Cooper & Co., 1929, 279 U.S. 156, 49 S.Ct. 267, 73 L.Ed. 650; Pure Oil Co. v. Puritan Oil Co., 2 Cir., 1942, 127 F.2d 6.
13
See Vacuum Oil Co. v. Eagle Oil Co., C.C.1907, 154 F. 867.
14
2 Cir., 1908, 166 F. 261, affirming, C.C., 160 F. 184.
15
166 F. at pages 264, 266.
16
See also United States v. Aluminum Co. of America, 2 Cir., 1945, 148 F.2d 416, 443—444. Cf. Ford v. United States, 1927, 273 U.S. 593, 620—621, 47 S.Ct. 531, 570, 71 L.Ed. 793; Lamar v. United States, 1916, 240 U.S. 60, 65—66, 36 S.Ct. 255, 256—257, 60 L.Ed. 526; Strassheim v. Daily, 1911, 221 U.S. 280, 284—285, 31 S.Ct. 558, 560, 55 L.Ed. 735.
17
Cf. Cole v. Cunnigham, 1890, 133 U.S. 107, 117—119, 10 S.Ct. 269, 272—273, 33 L.Ed. 538; Phelps v. McDonald, 1878, 99 U.S. 298, 307—308, 25 L.Ed. 473; Securities and Exchange Commission v. Minas de Artemisa, S.A., 9 Cir., 1945, 150 F.2d 215; Restatement, Conflict of Laws, §§ 94, 96. And see British Nylon Spinners, Ltd. v. Imperial Chemical Industries, Ltd., (1952) All Eng. 780, 782 (C.A.).
| 78
|
344 U.S. 254
73 S.Ct. 259
97 L.Ed. 301
KING et al.v.UNITED STATES et al.
No. 9.
Argued Oct. 15, 1952.
Decided Dec. 22, 1952.
Rehearing Denied Feb. 9, 1953.
See 344 U.S. 936, 73 S.Ct. 503.
Mr. Lewis W. Petteway, Tallahassee, Fla., for appellants.
Mr. Charles H. Weston, Washington, D.C., for appellees United States and Interstate Commerce Commission.
Mr. Frank W. Gwathmey, Washington, D.C., for appellees Atlantic Coast Line R. Co., and others.
Mr. Justice BURTON delivered the opinion of the Court.
1
The questions here are: (1) whether the Interstate Commerce Commission, in prescribing intrastate freight rates for railroads under § 13(4) of the Interstate Commerce Act,1 may give weight to deficits in passenger revenue; and (2) whether the findings of the Commission which are involved in this proceeding are sufficient to sustain the rates it has prescribed. Our answer to each question is in the affirmative.
2
This is an action against the United States brought in the United States District Court for the Northern District of Florida, under 28 U.S.C. (Supp. V) § 1336, 28 U.S.C.A. § 1336, by appellants 'as and Constituting the Florida Railroad and Public Utilities Commission.' They ask the court to enjoin, set aside and annul an order of the Interstate Commerce Commission requiring Florida railroads to establish intrastate freight rates which will reflect the same increases as have been authorized by it for comparable interstate traffic.
3
The underlying proceedings originated in 1940. The Interstate Commerce Commission then undertook a nationwide investigation of interstate railroad freight rates, under §§ 13(2) and 15a(2) of the Interstate Commerce Act, in conformity with the National Transportation Policy stated in § 1 of the Transportation Act of 1940.2 The investigation dealt with past and future freight and passenger operations, intrastate as well as interstate. A Committee of Cooperating State Commissioners sat with the Commission and took part in its deliberations. Mounting railroad operating costs and declining passenger revenue led the Commission, in 1946, to authorize a nationwide increase of 20% in basic interstate freight rates. Ex Parte No. 162, Increased Railway Rates, Fares, and Charges, 1946, 264 I.C.C. 695, 266 I.C.C. 537.3
4
In 1947, the Commission found such further increases in operating costs and decreases in passenger revenue that it authorized an additional nationwide interim increase of 10% in interstate freight rates. Soon it raised this to 20%. In a third report it varied the percentage in different areas, with the result that in the southern territory, including Florida, the increase was 25%. The 1948 final report confirmed this 25% increase. Ex Parte No. 166, Increased Freight Rates, 1947, 269 I.C.C. 33, 270 I.C.C. 81, 93, and 403. The Commission's estimates of revenue contemplated the application of the increased rates to intrastate, as well as to interstate, transportation.4 The report concludes with the statement that the 'Committee of Cooperating State Commissioners * * * authorize us to state that they concur in the foregoing report.' 270 I.C.C. 403, 463.
5
Upon publication of these reports, the railroads asked their respective state authorities to authorize comparable increases in intrastate rates. The Florida Commission approved most of the increases but declined to approve the final increase from 20% to 25%.5
6
On petition of the Florida railroads, the Interstate Commerce Commission undertook its own investigation of Florida intrastate railroad rates under § 13(3) and (4) of the Interstate Commerce Act, 41 Stat. 484, 49 U.S.C. § 13(3) and (4), 49 U.S.C.A. § 13(3, 4). A full hearing was had before a Commissioner and an examiner, followed by a hearing upon exceptions to the examiner's report.6 The Commission recommended that intrastate freight rates be established 'between points in Florida which will reflect the same increases as are, and for the future may be, maintained by respondents (railroads) on like interstate traffic to and from Florida, and within Florida under our authorizations in Ex Parte No. 162 and Ex Parte No. 166 * * *.' Finding No. 8, 278 I.C.C. 41, 73.
7
The Interstate Commerce Commission then gave the Florida Commission a final opportunity to permit the increased rates to be applied to intrastate transportation. Upon the latter's failure to act, the Interstate Commerce Commission ordered the railroads 'thereafter to maintain and apply for the intrastate transportation of freight from and to points in the State of Florida freight rates and charges which shall be no lower than the approved rates and charges, or on the approved rate bases, as provided in said report.'7
8
Before that order took effect, this action was filed. A three-judge District Court was convened. 28 U.S.C. (Supp. V) § 2325, 28 U.S.C.A. § 2325. Two short line railroads and numerous shippers intervened as plaintiffs. The Interstate Commerce Commission and all Class I railroads operating in Florida intervened as defendants. The entire record of the proceeding before the Commission, under § 13(4), was introduced. The court sustained the Commission and dismissed the complaint. 101 F.Supp. 941. That judgment is here on appeal. 28 U.S.C. (Supp. V) §§ 1253, 2101(b), 28 U.S.C.A. §§ 1253, 2101(b).
9
I. The Interstate Commerce Commission in prescribing intrastate freight rates for railroads under § 13(4) of the Interstate Commerce Act may give weight to deficits in passenger revenue.
10
In Ex Parte No. 168, Increased Freight Rates, 1948, 272 I.C.C. 695, 276 I.C.C. 9, the Commission reviewed the changing attitudes it has adopted concerning the role of passenger deficits and freight rates. In such cases as the Five Per Cent Case, 31 I.C.C. 351, the Commission in 1914 concluded that each class of service should completely and independently provide its own proportionate share of expenses and profits.8 In 1949 the Commission says:
11
'However, because of changed theories adopted by Congress in the Transportation Act, 1920, and because as a practical matter the increasing degree of unprofitableness of the passenger traffic menaced the continuity of an adequate national system of transportation, we were forced to a more comprehensive view of this question. We observe, also, that at the time of those decisions the railroads enjoyed a practical monopoly in supplying transportation, but that situation no longer exists.' 276 I.C.C. at 34.
12
Citing with approval its similar views in Ex Parte No. 103, Fifteen Per Cent Case, 1931, 178 I.C.C. 539, and Ex Parte No. 123, Fifteen Per Cent Case, 1937—1938, 226 I.C.C. 41, the Commission summarizes its present position as follows:
13
'These cases are typical of our more recent holdings upon this question. While we regard it as 'trite to say that each particular service, coach, sleeper, parlor car, and head end, should as nearly as may be pay its own way and return a profit' (Eastern Passenger Fares in Coaches, 227 I.C.C. 17, 25), and we have accepted the contention that there may be traffic that should not be burdened with a shortage of passenger service return (Livestock, Western District Rates, 190 I.C.C. 611, 629), yet, if passenger service inevitably and inescapably cannot bear its direct costs and its share of joint or indirect costs, we have felt compelled in a general rate case to take the passenger deficit into account in adjustment of freight rates and charges. Both the freight and passenger services are essential, and revenue losses or deficits on the one necessarily must be compensated by earnings on the other if the carriers are to continue operations. Both may be subjected to reasonable rates and charges to produce the fair aggregate return, even though thereby a higher rate of return may be exacted from the one than from the other. (Property Owners' Committee v. Chesapeake & O. Ry. Co., 237 I.C.C. 549, 565.)' Id., at 35. See also, Ex Parte 87, Revenues in Western District, 113 I.C.C. 3, 23.
14
This change of policy was the inevitable consequence of steadily increasing passenger operating costs, together with the growth of vigorous competition from automobiles and other forms of transportation which made it futile to compensate for the passenger deficits by increasing passenger rates. The railroads were forced to abandon passenger mileage, reduce service and improve their facilities, while fixing passenger rates at a level as adequate as competition permitted.9
15
In recent years, a nationwide passenger deficit has been obvious except during the peak of wartime passenger traffic. The ratio between passenger operating expense and revenue has varied in different areas but has been uniformly unfavorable to the railroads.10
16
Section 15a(2) of the Interstate Commerce Act and the National Transportation Policy of 194011 reflect this broad concept of the unity of the Nation's transportation system. They direct the Commission to consider, among other things, the need, in the public interest, of adequate and efficient railway transportation service and the need of revenues sufficient to sustain such service. It permeates such general revenue proceedings as Ex Parte Nos. 162 and 166, supra. It leaves no ground for a claim that the Commission may not give weight to passenger revenue deficits in prescribing interstate freight rates to meet over-all revenue needs. See United States v. Louisiana, 290 U.S. 70, 54 S.Ct. 28, 78 L.Ed. 181.
17
The question remains whether that Commission may give weight to deficits in passenger revenue (either interstate or intrastate) when prescribing intrastate freight rates under § 13(4). It is conceivable that some considerations properly given weight by the Commission in prescribing interstate freight rates in a general revenue proceeding might not be applicable equally to transportation within a particular state.
18
In the instant case, however, there is no showing that the character of operating conditions in Florida intrastate passenger traffic differs substantially from that of interstate passenger operations in the southern territory generally. On the contrary, the Commission observes that—
19
'Increased passenger deficits, by reason of the continuing rise in operating expenses and the growing use of other froms of transportation, is a condition bearing alike upon intrastate and interstate rates. There is here no claim or showing that the passenger deficits of the respondents do not result from intrastate as well as interstate operations, and the passenger deficit of the East Coast, which operates entirely within Florida, would appear to indicate to the contrary.
20
'The record affords no justification for a difference in treatment in this respect (passenger deficits) between Florida intrastate traffic, on the one hand, and interstate traffic to and from Florida, on the other hand. The question of passenger deficits is a serious one for both carriers and shippers, and would become even more serious for interstate shippers if this burden were imposed entirely upon them (rather than being shared on a like basis with intrastate shippers on the same lines).' 278 I.C.C. at 67—68. See opinion below, 101 F.Supp. at page 944.
21
It appears from the report in Ex Parte No. 168, 276 I.C.C. at 40, that, in 1948, the passenger service operating ratio for the southern territory was 127.3% while the operating ratios of the three principal Florida railroads in that year were 120%, 127% and 128%. In Florida, moreover, the discontinuance of railroad passenger service would not permit the discontinuance of high speed tracks and equipment because of the need for fast freight schedules to transport perishable fruits and vegetables from Florida. The Commission dealt with the freight and passenger revenues and properties of the Florida roads as a whole when determining the need for increases in interstate freight rates. Nothing has been demonstrated which would demand different treatment of these properties in relation to the intrastate activities.
22
The Commission also finds that 'the Florida intrastate rates (without the 5% increase) * * * are abnormally low and are not contributing their fair share to the revenues required by respondents (Florida railroads) to enable them to render adequate and efficient service and to operate profitably, and thereby accomplish the purpose of the Interstate Commerce Act * * *.' Finding No. 5, 278 I.C.C. at 72.
23
In the instant case there is no evidence which would require the Commission to treat Florida intrastate rates differently from interstate rates in southern territory. Instead, there are findings that it would cause unjust discrimination against interstate commerce in Florida if the intrastate freight rates are not increased so as to reflect the same increase as is applied by the Commission to like interstate traffic in the southern territory. See note 13, infra.
24
The same National Transportation Policy applies to § 13(4) as to § 15a(2). Whichever section is used, the same economic considerations underlie the relation between freight rates and passenger deficits, whether interstate or intrastate. This was well considered throughout the opinion of the Court in United States v. Louisiana, supra. It was there said:
25
'This court has consistently held that this section (§ 13(4)) is to be construed in the light of section 15a(2) and as supplementing it, so that the forbidden discrimination against interstate commerce by intrastate rates includes those cases in which disparity of the latter rates operates to thwart the broad purpose of section 15a to maintain an efficient transportation system by enabling the carriers to earn a fair return. So construed, section 13(4) confers on the Commission the power to raise intrastate rates so that the intrastate traffic may produce its fair share of the earnings required to meet maintenance and operating costs and to yield a fair return on the value of property devoted to the transportation service, both interstate and intrastate.' 290 U.S. at pages 74—75, 54 S.Ct. at page 31.
26
This was confirmed in Florida v. United States, 292 U.S. 1, 5 6, 54 S.Ct. 603, 605, 78 L.Ed. 1077.
27
We conclude that there is no reason why the Commission may not give weight to passenger deficits in prescribing the intrastate freight rates in Florida, as it does in prescribing interstate freight rates for the southern territory.12
28
Several of the Commission's findings which lend support to its order are printed in the margin.13 Its authority to prescribe the rates now before us rests on the provision, in § 13(4), that when it finds that an intrastate rate causes 'any undue, unreasonable, or unjust discrimination against interstate or foreign commerce * * *' it shall prescribe such rate as, in its judgment, will remove the discrimination. Note 1, supra. The Commission's finding No. 7 meets this requirement. The Commission there finds that the maintenance of the existing intrastate rates within Florida 'on bases lower than those herein approved causes and in the future will cause, (1) in all instances, unjust discrimination against interstate commerce * * *.' 278 I.C.C. at 73. If supported by adequate subsidiary findings, the ultimate finding thus sustains the authority of the Commission and the validity of its order.14 North Carolina v. United States, 325 U.S. 507, 514, 65 S.Ct. 1260, 1264, 89 L.Ed. 1760; Florida v. United States, 292 U.S. 1, 54 S.Ct. 603, 78 L.Ed. 1077; Id., 282 U.S. 194, 51 S.Ct. 119, 75 L.Ed. 291; United States v. Louisiana, 290 U.S. 70, 54 S.Ct. 28, 78 L.Ed. 181. The court below adds that it is 'clear from the evidence in the case that it (the existing intrastate rate) did result in undue, unreasonable and unjust discrimination against interstate commerce * * *.' 101 F.Supp. 941, 945.
29
The nature and adequacy of the findings necessary to support an ultimate finding of 'unjust discrimination against interstate commerce' were considered in North Carolina v. United States, supra. In that case this Court held that the Commission's findings were not adequate to support the Commission's order to raise state-wide intrastate passenger rates from 1.65 cents per mile to 2.2 cents per mile, although the latter rate was prescribed by the Commission as a minimum rate for comparable interstate passenger service on the same lines and trains. The finding which was primarily needed, and was there found lacking, was one that the intrastate service at 1.65 cents per mile did not contribute its fair share of the earnings required to meet maintenance and operating costs and to yield a fair return on the value of the property directed to the transportation service, both interstate and intrastate.
30
This Court held that the mere disparity between the rates for comparable intrastate and interstate service was not enough per se to establish the requisite unjust discrimination. Confronted with evidence that the interstate rate of 2.2 cents per mile was above a reasonable rate level for comparable intrastate passenger service, a finding supported by evidence was held to be necessary to show the contrary. Such a finding, lacking in the North Carolina case, is supplied here by finding No. 3, which states that the 'intrastate rates * * * herein approved will not exceed a just and reasonable level.' 278 I.C.C. at 72.
31
In the North Carolina case there was no finding that the existing intrastate rate was inadequate. In fact, its ample adequacy was indicated by evidence of an extraordinarily large volume of available traffic and profits. In contrast, the Commission, in the instant case, has found that the existing 'Florida intrastate rates * * * which are below the (proposed) level herein authorized, are abnormally low and are not contributing their fair share to the revenues * * * and that the burden thus cast upon interstate commerce is undue to the extent that these intrastate rates * * * are less than they would be on the basis herein approved.' Finding No. 5, id., at 72—73, and see 45—59. The report adds that 'the revenue loss as estimated by the respondents (railroads) because of the failure to authorize the increases herein sought is $915,325 a year.' Id., at 65.
32
Whereas in the North Carolina case there was evidence to indicate that the conditions in that State were more favorable to profitable intrastate transportation of passengers than in the Nation at large, here the Commission's finding No. 2 expressly states that 'the transportation conditions incident to the intrastate transportation of freight in Florida are not more favorable and such conditions in the Florida peninsula are somewhat less favorable than those (1) within southern territory and (2) between Florida and interstate points.' Id., at 72, and see 63—67.
33
Supporting the conclusion that the proposed increase in the Florida intrastate freight rates will not drive away business but will prove profitable and reasonable, the Commission in its finding No. 6 says that 'the establishment of intrastate rates * * * increased sufficiently to equal the level herein approved will substantially increase respondents' (railroads') revenues therefrom, and will constitute not more than a fair proportion of respondents' total income * * *.' Id., at 73.
34
The foregoing findings cover the needs emphasized in the North Carolina case. They go far beyond the bare disparity between the existing intrastate rate and the proposed minimum rate which is in substantial uniformity with the interstate rate. These findings demonstrate that the proposed rate in Florida will be within the zone of reasonableness and, in the opinion of the Commission, will cause the intrastate freight traffic to contribute a fair share of the earnings.
35
The Commission has applied to the Florida operations the same conclusion it reached as to the need for increased revenue on a national basis and has distributed the burden within Florida along the same lines it followed when estimating the revenues available in the southern territory from intrastate as well as interstate operations. In the absence of any showing that it is not applicable to Florida, the evidence which forms the basis of the Commission's nationwide order becomes the natural basis for its Florida order.
36
The Commission in the instant case has provided that these 'findings are without prejudice to the right of the authorities of the State of Florida, or any other interested party, to apply for a modification thereof as to any specific intrastate rates * * * on the ground that they are not related to the interstate rates * * * on like traffic in such a way as to contravene the provisions of the Interstate Commerce Act.' Id., at 74. Certain of the rates in the original order already have been modified or removed from that order. 101 F.Supp. at page 946.
37
No question has been raised here as to the adequacy of the evidence upon which any of the findings are based. Although no such point is urged, supporting evidence appears in the record of the 'full hearing' under § 13(4), all of which was introduced in evidence in the court below. Much of the factual material that was before the Commission in Ex Parte No. 162 and Ex Parte No. 166, and the reports in those cases, were before the Commission and the court below in the present proceedings. To permit such material and reports to be applied under § 15a but not under § 13(4) would be contrary to the complementary nature of those sections.
38
'The decision in the first proceeding, that the increase in interstate rates was reasonable, was made in the hope that the state commissions would bring intrastate rates into harmony. When they failed to do so, the Commission reaffirmed its finding that the new interstate rates were reasonable and found that the intrastate rates must be raised in order that the intrastate traffic may bear its fair share of the revenue burden. It is plain from the nature of the inquiry that the rate level, to which both classes of traffic were raised, was found reasonable on the basis of the traffic as a whole. Where the conditions under which interstate and intrastate traffic move are found to be substantially the same with respect to all factors bearing on the reasonableness of the rate, and the two classes are shown to be intimately bound together, there is no occasion to deal with the reasonableness of the intrastate rates more specifically, or to separate intrastate and interstate costs and revenues. Compare American Express Co. v. State of South Dakota ex rel. Caldwell, 244 U.S. 617, 37 S.Ct. 656, 61 L.Ed. 1352; United States v. Louisiana, supra (290 U.S. 70, 54 S.Ct. 28, 78 L.Ed. 181); Florida v. United States, supra (292 U.S. at page 1, 54 S.Ct. 603, 78 L.Ed. 1077).' Illinois Commerce Commission v. United States, 292 U.S. 474, 483—484, 54 S.Ct. 783, 786—787, 78 L.Ed. 1371. See, also, Montana v. United States, D.C., 106 F.Supp. 778, 783.
39
The appellants point out that in the North Carolina case, this Court mentioned the absence of other findings. Those, however, are not needed to sustain an order already supported by such findings as have been made in this case.15
40
For example, the North Carolina case mentions the absence in that case of a finding that the existing 1.65 cent per mile intrastate passenger rate was confiscatory. Such a finding, supported by competent evidence, would have provided a constitutional ground for enjoining the state rate. See Norfolk & Western R. Co. v. Attorney General Conley of West Virginia, 236 U.S. 605, 35 S.Ct. 437, 59 L.Ed. 745; Northern Pacific R. Co. v. North Dakota, 236 U.S. 585, 35 S.Ct. 429, 59 L.Ed. 735. The Interstate Commerce Commission's jurisdiction over intrastate rates, however, is not limited to cases where those rates are confiscatory. It is sufficient that the existing intrastate rates cause 'unjust discrimination against interstate or foreign commerce * * *.' In that event, § 13(4) directs the Commission to prescribe intrastate rates that will remove the discrimination without raising the rate beyond the zone of reasonableness. See United States v. Louisiana, supra, 290 U.S. at pages 74—75, 54 S.Ct. at page 31, 78 L.Ed. 181; Florida v. United States, 282 U.S. 194, 211, 51 S.Ct. 119, 123, 75 L.Ed. 291; Wisconsin R. Commission v. Chicago, B. & Q.R. Co., 257 U.S. 563, 585—586, 42 S.Ct. 232, 236, 66 L.Ed. 371.
41
Similarly, the North Carolina case mentions, but does not make indispensable, the specific findings in dollars which were absent there. Reference was made in the North Carolina case to the absence of 'findings as to what contribution from intrastate traffic would constitute a fair proportion of the railroad's total income' and also to the absence of any 'finding as to what amount of revenue was required to enable these railroads to operate efficiently.' 325 U.S. at page 516, 65 S.Ct. at page 1265, 89 L.Ed. 1760. The Court emphasized the Commission's reliance on 'the mere existence of a disparity between what it said was a reasonable interstate rate and the intrastate rate fixed by North Carolina.' Ibid. In the instant case the Commission does not rely upon the mere disparity between the intrastate and interstate rates. On the contrary, the Commission states that the Florida intrastate rates 'are abnormally low and are not contributing their fair share to the revenues required * * * to render adequate and efficient service and to operate profitably, and thereby accomplish the purpose of the Interstate Commerce Act * * *.' Finding No. 5, 278 I.C.C. at 72. Also, in finding No. 6, it says that the establishment of the proposed increases in intrastate rates 'will substantially increase respondents' revenues therefrom, and will constitute not more than a fair proportion of respondents' total income * * *.' Id., at 73. More is not needed. It is not necessary, for general revenue purposes, to establish for each item in each freight rate a fully developed rate case.
42
'(T)he administrative arm of the Commission (would be) paralyzed, if instead of adjudicating upon the rates in a large territory on evidence deemed typical of the whole rate structure, it were obliged to consider the reasonableness of each individual rate before carrying into effect the necessary increased schedule.' United States v. Louisiana, 290 U.S. 70, 75—76, and see pages 78—79, 54 S.Ct. 28, 31, and see pages 32—33, 78 L.Ed. 181. See also, Illinois Commerce Commission v. United States, 292 U.S. 474, 483, 54 S.Ct. 783, 786, 78 L.Ed. 1371; Florida v. United States, 292 U.S. 1, 9, 54 S.Ct. 603, 606, 78 L.Ed. 1077; Georgia P.S. Commission v. United States, 283 U.S. 765, 774, 51 S.Ct. 619, 622, 75 L.Ed. 1397; Wisconsin R. Commission v. Chicago, B. & Q.R. Co., 257 U.S. 563, 588, 42 S.Ct. 232, 237, 66 L.Ed. 371. Where the Commission seeks to deal generally with rates and revenues in a large area on evidence typical of the area as a whole, it may proceed by way of a general order supported by sufficient evidence applicable to the whole territory.16 At the same time it is well for it to leave the way open, as it did here, for modifications of that general order in specific situations where the general order is not justly applicable. North Carolina v. United States, supra, 325 U.S. at pages 518, 535, 65 S.Ct. at pages 1266, 1274, 89 L.Ed. 1760.
43
For these reasons, we conclude that the findings before us sustain the order of the Commission and that the Commission was authorized to give the weight it did to passenger deficits when prescribing intrastate freight rates. The judgment accordingly is affirmed.
44
Affirmed.
45
Mr. Justice BLACK is of opinion that the facts found by the Commission were not adequate to support the order and would set aside the order on authority of North Carolina v. United States, 325 U.S. 507, 65 S.Ct. 1260, 89 L.Ed. 1760.
46
Mr. Justice DOUGLAS, with whom Mr. Chief Justice VINSON concurs, dissenting.
47
The Court has taken an unprecedented and, in my view, an unwarranted step in enlarging the authority of the Interstate Commerce Commission. It upholds the power of the Commission to raise intrastate freight rates, not because they favor intrastate over interstate commerce, not because they fail to yield their fair share of the carriers' revenue, but because the carriers' interstate passenger operations are losing money.
48
The power of Congress to regulate intrastate rates stems from its authority to promote and protect interstate commerce. See Shreveport Rate Case (Houston East & West Texas R. Co. v. U.S.), 234 U.S. 342, 34 S.Ct. 833, 58 L.Ed. 1341.1 By § 13(4) of the Act the Commission is empowered to regulate intrastate rates which are found to be discriminatory. The key to this regulatory authority is discrimination against interstate commerce, which presupposes that somehow or other the particular intrastate rates interfere with or prejudice interstate commerce. This principle is explicit in § 13(4)2 and in the decisions of the Court, both before and after the enactment of § 13(4).3
49
In this case there is no rational relation between intrastate fright rates and interstate passenger operations. The present level of freight rates in Florida neither hampers nor obstructs the free flow of interstate passenger transportation. They do not affect its quantity or flow. There is, therefore, no basis for a finding of discrimination against interstate commerce.
50
The Commission, of course, is authorized to regulate intrastate rates so that intrastate operations will provide a fair share of the carriers' revenue.4 See Wisconsin R. Commission v. Chicago, B. & Q.R. Co., 257 U.S. 563, 42 S.Ct. 232, 66 L.Ed. 371. But that authority rests on the Commission's power to remove discrimination. If, for example, intrastate freight operations fail to produce an adequate return as determined by reference to the cost of the intrastate operations and the investment in the intrastate business, interstate commerce is discriminated against. But there is no such failure in this case. Intrastate freight operations in Florida are amply profitable and carry their fair share of the load. The Commission nevertheless has saddled the intrastate freight business with the deficits from the interstate passenger business. If there is any discrimination here, it is against the local Florida shipper.
51
The Commission surmises but does not find that the intrastate passenger rates contribute to the passenger deficits of the carriers. But there is no showing that either the intrastate passenger rates or the intrastate freight rates do in fact contribute to these deficits. Moreover, even if we assume that intrastate passenger rates do contribute to the passenger deficits, we do not know the amount. The absence of these material findings, see North Carolina v. United States, 325 U.S. 507, 65 S.Ct. 1260, 89 L.Ed. 1760, indicates to me the short cut which the Commission is taking to enlarge its jurisdiction to unprecedented limits.
1
'(4) Whenever in any such investigation (where rates made by authority of a state are in issue) the commission, after full hearing, finds that any such rate, fare, charge, classification, regulation, or practice causes any undue or unreasonable advantage, preference, or prejudice as between persons or localities in intrastate commerce on the one hand and interstate or foreign commerce on the other hand, or any undue, unreasonable, or unjust discrimination against interstate or foreign commerce, which is hereby forbidden and declared to be unlawful, it shall prescribe the rate, fare, or charge, or the maximum or minimum, or maximum and minimum, thereafter to be charged, and the classification, regulation, or practice thereafter to be observed, in such manner as, in its judgment, will remove such advantage, preference, prejudice, or discrimination. Such rates, fares, charges, classifications, regulations, and practices shall be observed while in effect by the carriers parties to such proceeding affected thereby, the law of any State or the decision or order of any State authority to the contrary notwithstanding.' (Italics supplied.) 41 Stat. 484, 49 U.S.C. § 13(4), 49 U.S.C.A. § 13(4).
2
§ 13(2), 36 Stat. 550, as amended, 41 Stat 484, 49 U.S.C. § 13(2), 49 U.S.C.A. § 13(2); § 15a(2), 54 Stat. 912, 49 U.S.C. § 15a(2), 49 U.S.C.A. § 15a(2); § 1 of the Transportation Act of 1940, inserting a preamble to the Interstate Commerce Act, 54 Stat. 899, 49 U.S.C. note preceding § 1, 49 U.S.C.A. note preceding section 1.
3
For earlier reports see Ex Parte No. 148, Increased Railway Rates, Fares and Charges, 1942, 248 I.C.C. 545. The several proceedings under §§ 15a or 13(4) referred to in this opinion deal at length with many commodity and other rates or charges besides those which are controlled by the general percentage increases referred to in the opinion. While such variations are important and significant in adjusting each order to specific situations, their consideration is not necessary to the determination of the issues before us. The percentages used in this opinion are those which were adopted by the court below for illustrative purposes. 101 F.Supp. 941, 943—944.
4
In Ex Parte No. 166, 270 I.C.C. 403, 421, the tabulations of overall percentage increases in freight rates include intrastate traffic. The report says: 'The table which relates to class I railroads, covers all traffic, intrastate as well as interstate, and assumes increases to have been approved on intrastate traffic similarly to those upon interstate traffic in the same territory, for the whole time.' In referring to revenue from operations for a 'constructive,' normal year, the report says: 'This estimate is upon the assumption that timely similar adjustments will be made upon intrastate traffic.' Id., at 428. As to rates of return on property values it adds: 'They presuppose that generally similar increases will be permitted by State authorities on intrastate traffic, or may become effective otherwise.' Id., at 437. See also, 269 I.C.C. at 39, 94—95, and 270 I.C.C. at 440.
5
In response to requests based upon Ex Parte No. 162, supra, the Florida Commission granted the original 20% general increase in intrastate freight rates but declined to allow increases in intrastate rates on logs moving to the mills, wet phosphate moving from the washer to the drying plant, waste wood moving to retort or recovery plant and sugar cane moving to the mills. It also limited rate increases on pulpwood to 9%. In response to requests to conform to Ex Parte No. 166, supra, the Florida Commission granted the additional 20% general increase in intrastate freight rates, but declined to approve the further 5% increase. It also made specific exceptions in favor of certain commodities. As the issues with which we are concerned are sufficiently raised by the Florida Commission's action denying the final 5% increase, we confine our discussion to that item.
6
While the Commission states that its conclusions differ from those in the proposed report of the examiner, they do not so differ on the issues before us.
7
For other decisions of the Commission as to intrastate rates under § 13(3) and (4), growing out of Ex Parte Nos. 162 or 166, supra, see Increases in Alabama Freight Rates and Charges, 274 I.C.C. 439; Texas Intrastate Rates, 273 I.C.C. 749; Increases in Tennessee Freight Rates and Charges, 272 I.C.C. 625. See also, Increases in Arizona Freight Rates and Charges, 270 I.C.C. 105. A recent decision, growing out of Ex Parte No. 168, Increased Freight Rates, 1948, 276 I.C.C. 9, is Montana Intrastate Freight Rates and Charges, 284 I.C.C. 167. The intrastate rates there ordered into effect by the Commission were set aside in Montana v. United States, D.C., 106 F.Supp. 778, and 786; Judgment vacated and cause remanded by this Court for further consideration in the light of the instant case, 343 U.S. 905, 73 s.ct. 329.
8
The Commission there said: 'We know of no provision of law under which we should be justified in increasing freight rates to provide a return upon property used exclusively in the passenger service, much less to take care of losses incurred in such service. In our opinion each branch of the service should contribute its proper share of the cost of operation and of return upon the property devoted to the use of the public.' 31 I.C.C. at 392.
9
Passenger service involves not only transportation of people but of mail, express, baggage, milk and other 'headend' services requiring the speed and service of passenger trains. These operations have shown a national operating deficit in each year from 1936 through 1948. 276 I.C.C. at 38.
10
'* * * Between the end of 1923 and the beginning of the present year (1948), the miles of line operated in passenger service of the class I roads decreased from 224,762 to 159,373 * * * or 29.1 percent in 26 years. * * * In addition to total abandonments, much curtailment of service has occurred, which is impossible to portray statistically.
'* * * From 1923 through 1933 both the number of passengers carried and the revenues from passenger fares declined uninterruptedly. Passengers carried declined from slightly less than 1 billion in the earlier year to less than half that figure, or 433 millions, in round numbers, in the later year. Revenues from passenger fares fell from $1,148 millions to $329 millions, a decline between these 2 years of more than 70 percent. This development was accompanied, except for 1 year, by an uninterrupted increase in the passenger service operating ratio from 81.29 percent in 1923 to 101.22 percent in 1930, the latter being the first year of the 11 years 1920—30 in which there was an operating deficit in this service. Since that year there has been an annual operating deficit in passenger service, except during the war years 1942—45.
"Passenger service operating ratios and net railway operating deficits in 1948, by specified districts and regions
District or region Operating Net railway operating
ratio deficit
Eastern district. 120.8 $216,450,000
Pocahontas region. 177.8 35,725,000
Southern region. 127.3 72,982,000
Western District.__132.2 __234,625,000
Total..... 127.4. 559,782,000"
276 I.C.C. at 36, 40; see also, pp. 14—31 for data as to value, revenue, expenses, operating income rate of return, traffic, efficiency, etc., and pp. 32—40 as to passenger deficits.
See Moulton, The American Transportation Problem, c. V (1933); 63d, 64th and 65th Annual Reports of the Interstate Commerce Commission, at pp. 3, 5 and 41, respectively.
11
'In the exercise of its power to prescribe just and reasonable rates the Commission shall give due consideration, among other factors, to the effect of rates on the movement of traffic by the carrier or carriers for which the rates are prescribed; to the need, in the public interest, of adequate and efficient railway transportation service at the lowest cost consistent with the furnishing of such service; and to the need of revenues sufficient to enable the carriers, under honest, economical, and efficient management to provide such service.' 54 Stat. 912, 49 U.S.C. § 15a(2), 49 U.S.C.A. § 15a(2).
'It is hereby declared to be the national transportation policy of the Congress to provide for fair and impartial regulation of all modes of transportation subject to the provisions of this Act, so administered as to recognize and preserve the inherent advantages of each; to promote safe, adequate, economical, and efficient service and foster sound economic conditions in transportation and among the several carriers; to encourage the establishment and maintenance of reasonable charges for transportation services, without unjust discriminations, undue preferences or advantages, or unfair or destructive competitive practices; to cooperate with the several States and the duly authorized officials thereof; and to encourage fair wages and equitable working conditions;—all to the end of developing, coordinating, and preserving a national transportation system by water, highway, and rail, as well as other means, adequate to meet the needs of the commerce of the United States, of the Postal Service, and of the national defense. All of the provisions of this Act shall be administered and enforced with a view to carrying out the above declaration of policy.' 54 Stat. 899, 49 U.S.C. note preceding § 1, 49 U.S.C.A. note preceding section 1.
12
Northern Pacific R. Co. v. North Dakota, 236 U.S. 585, 35 S.Ct. 429, 59 L.Ed. 735, and Norfolk & W.R. Co. v. Conley, 236 U.S. 605, 35 S.Ct. 437, 59 L.Ed. 745, favor, rather than oppose, this position. In those cases this Court enjoined state authorities from attempting to restrict an intrastate railroad to confiscatorily low freight or passenger rates. Such action, however, carried no implication that the United States' authority to provide relief is limited to cases of threatened confiscation. In the instant case the Interstate Commerce Commission is authorized by Congress, under §§ 15a(2) and 13(4), to override state-prescribed rates which unjustly discriminate against interstate commerce, whether or not the state rates are also confiscatory.
II. The Commission's findings involved in this proceeding are sufficient to sustain the rates prescribed.
13
'2. That the transportation conditions incident to the intrastate transportation of freight in Florida are not more favorable and such conditions in the Florida peninsula are somewhat less favorable than those (1) within southern territory and (2) between Florida and interstate points.
'3. That the present interstate freight rates and charges within Florida and between points in Florida and points in other States
are just and reasonable * * * and that intrastate rates, charges, and minimum weights herein approved will not exceed a just and reasonable level.
'5. That the Florida intrastate rates, charges, and minimum weights, which are below the level herein authorized, are abnormally low and are not contributing their fair share to the revenues required by respondents to enable them to render adequate and efficient service and to operate profitably, and thereby accomplish the purpose of the Interstate Commerce Act, and as set forth in the national transportation policy declared by the Congress, to develop and preserve a national transportation system adequate to meet the needs of the commerce of the United States, of the postal service, and of the national defense; and that the burden thus cast upon interstate commerce is undue to the extent that these intrastate rates and charges are less than they would be on the basis herein approved.
'6. That the establishment of intrastate rates and charges increased sufficiently to equal the level herein approved will substantially increase respondents' revenues therefrom, and will constitute not more than a fair proportion of respondents' total income * * *.
'7. That the maintenance of intrastate rates and charges within Florida on bases lower than those herein approved causes, and in the future will cause, (1) in all instances, unjust discrimination against interstate commerce, (2) in nearly all instances, undue preference of and advantage to localities in intrastate commerce, and undue prejudice to localities in interstate commerce; * * *.
'8. That this unjust discrimination and undue prejudice should be removed by establishing intrastate rates and charges between points in Florida which will reflect the same increases as are, and for the future may be, maintained by respondents on like interstate traffic to and from Florida, and within Florida under our authorizations in Ex Parte No. 162 and Ex Parte No. 166, modified as herein indicated and as proposed before the Florida commission in proceedings referred to herein: * * * (5) that no intrastate rate or charge shall be increased so that it will exceed the lowest level of the corresponding rates or charges contemporaneously maintained generally in interstate traffic to and from Florida points in the period from August 21, 1948, to, but not including, January 11, 1949; * * *.
'These findings are without prejudice to the right of the authorities of the State of Florida, or any other interested party, to apply for a modification thereof as to any specific intrastate rates or charges on the ground that they are not related to the interstate rates or charges on like traffic in such a way as to contravene the provisions of the Interstate Commerce Act.' (Italics supplied.) 278 I.C.C. at 72—74.
14
An alternative provision of § 13(4) is that whenever in such an investigation the Commission finds that an intrastate rate causes 'any undue or unreasonable advantage, preference, or prejudice as between persons or localities in intrastate commerce on the one hand and interstate or foreign commerce on the other hand * * * it shall prescribe the rate * * * thereafter to be charged * * * in such manner as, in its judgment, will remove such advantage, preference, prejudice, or discrimination.' Note 1, supra. On this point the Commission's finding No. 7 states that the maintenance of intrastate rates in Florida 'on bases lower than those herein approved causes, and in the future will cause * * * (2) in nearly all instances, undue preference of and advantage to localities in intrastate commerce, and undue prejudice to localities in interstate commerce; * * *.' 278 I.C.C. at 73. As to this alternative provision, see also, Wisconsin R. Commission v. Chicago, B. & Q.R. Co., 257 U.S. 563, 42 S.Ct. 232, 66 L.Ed. 371; Houston, E. & W.T.R. Co. v. United States, 234 U.S. 342, 34 S.Ct. 833, 58 L.Ed. 1341. In view of the above restricted finding and of the doubt expressed by the court below as to the ability of the Commission to sustain its action on that ground, we place no reliance upon this alternative here.
15
See Illinois Commerce Commission v. United States, supra; Florida v. United States, 292 U.S. 1, 54 S.Ct. 603, 78 L.Ed. 1077; United States v. Louisiana, supra; Louisiana P.S. Commission v. Texas & N.O.R. Co., 284 U.S. 125, 52 S.Ct. 74, 76 L.Ed. 201; Alabama v. United States, 283 U.S. 776, 51 S.Ct. 623, 75 L.Ed. 1406; Georgia P.S. Commission v. United States, 283 U.S. 765, 51 S.Ct. 619, 75 L.Ed. 1397; New York v. United States, 257 U.S. 591, 42 S.Ct. 239, 66 L.Ed. 385; Wisconsin R. Commission v. Chicago, B. & Q.R. Co., 257 U.S. 563, 42 S.Ct. 232, 66 L.Ed. 371.
16
In its report the Commission says 'where, as is the case here, the intrastate and the interstate traffic, as a whole, moves under substantially similar conditions, and the expense of handling the two classes of traffic are inextricably woven together, an attempt to do the impossible, namely an attempt to show costs of intrastate service segregated from interstate costs, together with similarly segregated valuation of carrier property, would serve no useful purpose.' 287 I.C.C. at 66.
1
As Mr. Justice Hughes speaking for the Court in the Shreveport case said, 234 U.S. at page 351, 34 S.Ct. at page 836: 'Congress is empowered to regulate,—that is, to provide the law for the government of interstate commerce; to enact 'all appropriate legislation' for its 'protection and advancement' (The Daniel Ball, 10 Wall. 557, 564, 19 L.Ed. 999, 1001); to adopt measures 'to promote its growth and insure its safety' (County of Mobile v. Kimball, 102 U.S. 691, 696, 697, 26 L.Ed. 238—240); 'to foster, protect, control, and restrain' (Second Employers' Liability Cases (Mondou v. New York, N.H. & H.R. Co.), 223 U.S. 1, 47, 53, 54, 32 S.Ct. 169, 56 L.Ed. 327, 345, 347, 348, 38 L.R.A.,N.S., 44). Its authority, extending to these interstate carriers as instruments of interstate commerce, necessarily embraces the right to control their operations in all matters having such a close and substantial relation to interstate traffic that the control is essential or appropriate to the security of that traffic, to the efficiency of the interstate service, and to the maintenance of conditions under which interstate commerce may be conducted upon fair terms and without molestation or hindrance.'
2
The relevant portions of § 13(4) read: 'Whenever in any such investigation the commission, after full hearing, finds that any such rate, fare, charge, classification, regulation, or practice causes any undue or unreasonable advantage, preference, or prejudice as between persons or localities in intrastate commerce on the one hand and interstate or foreign commerce on the other hand, or any undue, unreasonable, or unjust discrimination against interstate or foreign commerce, which is hereby forbidden and declared to be unlawful, it shall prescribe the rate, fare, or charge, or the maximum or minimum, or maximum and minimum, thereafter to be charged, and the classification, regulation, or practice thereafter to be observed, in such manner as, in its judgment, will remove such advantage, preference, prejudice, or discrimination. * * *'
3
See Shreveport Rate Case, supra; American Express Co. v. South Dakota, 244 U.S. 617, 37 S.Ct. 656, 61 L.Ed. 1352; Wisconsin R. Commission v. Chicago, B. & Q.R. Co., 257 U.S. 563, 42 S.Ct. 232, 66 L.Ed. 371; Florida v. United States, 282 U.S. 194, 51 S.Ct. 119, 75 L.Ed. 291; Georgia P.S. Commission v. United States, 283 U.S. 765, 51 S.Ct. 619, 75 L.Ed. 1397; Louisiana P.S. Commission v. Texas & N.O.R. Co., 284 U.S. 125, 52 S.Ct. 74, 76 L.Ed. 201; United States v. Louisiana, 290 U.S. 70, 54 S.Ct. 28, 78 L.Ed. 181; North Carolina v. United States, 325 U.S. 507, 65 S.Ct. 1260, 89 L.Ed. 1760.
4
Section 15a(2) of the Act reads in pertinent part: 'In the exercise of its power to prescribe just and reasonable rates the commission shall initiate, modify, establish or adjust such rates so that carriers as a whole * * * will, under honest, efficient and economical management and reasonable expenditures for maintenance of way, structures and equipment, earn an aggregate annual net railway operating income equal, as nearly as may be, to a fair return upon the aggregate value of the railway property of such carriers held for and used in the service of transportation * * *.'
| 89
|
344 U.S. 237
73 S.Ct. 236
97 L.Ed. 291
PUBLIC SERVICE COMMISSION OF UTAH et al.v.WYCOFF CO., Inc.
No. 44.
Argued Nov. 13, 1952.
Decided Dec. 22, 1952.
[Syllabus from pages 237-238 intentionally omitted]
Mr. Wood R. Worsley, Salt Lake City, Utah, for petitioners.
Mr. Harold S. Shertz, Philadelphia, Pa., Mr. Wayne C. Durham, Salt Lake City, Utah, for respondent.
Mr. Justice JACKSON delivered the opinion of the Court.
1
As this suit in equity was commenced in United States District Court it sought two kinds of specific relief: (1) a declaratory judgment that complainant's carriage of motion picture film and newsreels between points in Utah constitutes interstate commerce; (2) that the Public Service Commission of Utah and its members be forever enjoined from interfering with such transportation over routes authorized by the Interstate Commerce Commission.
2
The complaint alleged a course of importing, processing and transporting picture film and newsreels to support the contention that carriage between points in Utah was so integrated with their interstate movement that the whole constituted interstate commerce. It averred that the Commission and its members 'threatened to and are attempting to stop and prevent plaintiff from transporting motion picture film and newsreel between points and places within the State of Utah, and they are thereby interfering with the conduct of interstate commerce by the plaintiff and imposing an undue burden upon interstate commerce,' and that unless the defendants are enjoined they will 'block, harass and prevent plaintiff in the transportation of said motion picture film and newsreels in Utah.'
3
The Commission and its members answered that respondent's transportation between points in Utah was nothing more than intrastate commerce. They specifically denied attempting, threatening, or intending to interfere with or burden interstate commerce.
4
The District Court, after trial, sustained the contention of the Commission and dismissed the complaint. The Court of Appeals considered only 'whether the intrastate transportations are nonetheless integral parts of interstate transportations.'1 It held the evidence to warrant an affirmative answer, reversed the judgment of the District Court and ordered further proceedings in conformity with that view. We granted certiorari,2 requesting counsel to discuss whether a single judge could hear and determine the case in view of 28 U.S.C. § 2281, 28 U.S.C.A. § 2281. That section provides that an injunction restraining enforcement of a state statute or the order of an administrative body thereunder 'shall not be granted' upon the ground of unconstitutionality unless the application is heard and determined by a district court of three judges as provided in 28 U.S.C. § 2284, 28 U.S.C.A. § 2284.
5
The respondent, which was plaintiff, contends that a three-judge court was not required, because the suit does not question constitutionality of any Utah statute nor the validity of any order of the State Commission. It says also that no injunction has been granted or even urged 'outside of the naked recitation in the prayer of the complaint.' It offered no evidence whatever of any past, pending or threatened action by the Utah Commission touching its business in any respect. The pleadings made that a clear-cut issue, which seems to have been completely ignored thereafter. The only issues defined on pretrial hearing was whether as matter of fact and of law the within-state transportation constituted interstate commerce. The trial court, however, made a general finding that no such interference had been made or threatened, which was not reversed or mentioned by the Court of Appeals.
6
For more reasons than one it is clear that this proceeding can not result in an injunction on constitutional grounds. In addition to defects that will appear in our discussion of declaratory relief, it is wanting in equity because there is no proof of any threatened or probable act of the defendants which might cause the irreparable injury essential to equitable relief by injunction.
7
The respondent appears to have abandoned the suit as one for injunction but seeks to support it as one for declaratory judgment, hoping thereby to avoid both the three-judge court requirement and the necessity for proof of threatened injury. Whether declaratory relief is appropriate under the circumstances of this case apparently was not considered by either of the courts below. But that inquiry is one which every grant of this remedy must survive.
8
The Declaratory Judgment Act of 1934, now 28 U.S.C. § 2201, 28 U.S.C.A. § 2201, styled 'creation of a remedy,' provides that in a case of actual controversy a competent court may 'declare the rights and other legal relations' of a party 'whether or not further relief is or could be sought.' This is an enabling Act, which confers a discretion on the courts rather than an absolute right upon the litigant.
9
Previous to its enactment there were responsible expressions of doubt that constitutional limitations on federal judicial power would permit any federal declaratory judgment procedure. Cf. Liberty Warehouse Co. v. Grannis, 273 U.S. 70, 47 S.Ct. 282, 71 L.Ed. 541; Willing v. Chicago Auditorium Ass'n, 277 U.S. 274, 48 S.Ct. 507, 72 L.Ed. 880; State of Arizona v. State of California, 283 U.S. 423, 51 S.Ct. 522, 75 L.Ed. 1154; Piedmont & N.R. Co. v. United States, 280 U.S. 469, 50 S.Ct. 192, 74 L.Ed. 551. Finally, as the practice extended in the states, we reviewed a declaratory judgment rendered by a state court and held that a controversy which would be justiciable in this Court if presented in a suit for injunction is not the less so because the relief was declaratory. Nashville, C. & St. L.R. Co. v. Wallace, 288 U.S. 249, 53 S.Ct. 345, 77 L.Ed. 730. Encouraged by this and guided by the experience of the thirty-four states that had enacted such laws, the Senate Judiciary Committee recommended an adaptation of the principle to federal practice. Its enabling clause was narrower than that of the Uniform Act adopted in 1921 by the Commissioners on Uniform State Laws, which gave comprehensive power to declare rights, status and other legal relations. The Federal Act omits status and limits the declaration to cases of actual controversy.3
10
This Act was adjudged constitutional only by interpreting it to confine the declaratory remedy within conventional 'case or controversy' limits. In Ashwander v. Tenessee Valley Authority, 297 U.S. 288, 325, 56 S.Ct. 466, 473, 80 L.Ed. 688, the Court said, 'The Act of June 14, 1934, providing for declaratory judgments, does not attempt to change the essential requisites for the exercise of judicial power' which still was to be tested by such established principles as that 'The judicial power does not extend to * * * abstract questions' and that 'Claims based merely upon 'assumed potential invasions' of rights are not enough to warrant judicial intervention.'
11
In Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 463, 81 L.Ed. 617, Mr. Chief Justice Hughes used the whole catalogue of familiar phrases to define and delimit the measure of this new remedy. If its metes and bounds are not clearly marked, it is because his available verbal markers are themselves elastic, inconstant and imprecise. It applies, he points out, only to 'cases and controversies in the constitutional sense' of a nature 'consonant with the exercise of the judicial function' and 'appropriate for judicial determination.' Each must present a 'justiciable controversy' as distinguished from 'a difference or dispute of a hypothetical or abstract character * * *. The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. * * * It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.' The relief is available only for a 'concrete case admitting of an immediate and definite determination of the legal rights of the parties.'
12
Other sources have stated relevant limitations. The Senate Judiciary Committee report regarded the 1,200 American decisions theretofore rendered on the subject as establishing that 'the issue must be real, the question practical and not academic and the decision must finally settle and determine the controversy.'4 Indeed the Uniform Act, unlike the Federal Act, expressly declares the discretion of the Court to refuse a decree that would not 'terminate the uncertainty or controversy giving rise to the proceeding.' In recommending Rule 57 of the Federal Rules of Civil Procedure, 28 U.S.C.A., in order to provide procedures for the declaratory decree, the Committee noted 'A declaration may not be rendered if a special statutory proceeding has been provided for the adjudication of some special type of case. * * *'5
13
But when all of the axioms have been exhausted and all words of definition have been spent, the propriety of declaratory relief in a particular case will depend upon a circumspect sense of its fitness informed by the teachings and experience concerning the functions and extent of federal judicial power. While the courts should not be reluctant or niggardly in granting this relief in the cases for which it was designed, they must be alert to avoid imposition upon their jurisdiction through obtaining futile or premature interventions, especially in the field of public law. A maximum of caution is necessary in the type of litigation that we have here, where a ruling is sought that would reach far beyond the particular case. Such differences of opinion or conflicts of interest must be 'ripe for determination' as controversies over legal rights. The disagreement must not be nebulous or contingent but must have taken on fixed and final shape so that a court can see what legal issues it is deciding, what effect its decision will have on the adversaries, and some useful purpose to be achieved in deciding them.
14
The complainant in this case does not request an adjudication that it has a right to do, or to have, anything in particular. It does not ask a judgment that the Commission is without power to enter any specific order or take any concrete regulatory step. It seeks simply to establish that, as presently conducted, respondent's carriage of goods between points within as well as without Utah is all interstate commerce. One naturally asks, so what? To that ultimate question no answer is sought.
15
A multitude of rights and immunities may be predicated upon the premise that a business consists of interstate commerce. What are the specific ones in controversy? The record is silent and counsel little more articulate. We may surmise that the purpose to be served by a declaratory judgment is ultimately the same as respondent's explanation of the purposes of the injunction it originally asked, which is 'to guard against the possibility that said Commission would attempt to prevent respondent from operating under its certificate from the Interstate Commerce Commission.' (Emphasis supplied.)
16
In this connection, Wycoff Co. v. Public Service Commission, Utah 1951, 227 P.2d 323, is brought to our attention. From this it appears that respondent and its predecessors in interest long made it a practice to obtain from the Utah Commission certificates to authorize this carriage of film commodities between points in Utah. But the Supreme Court of Utah, in the cited case, sustained the Commission in denying such an application upon a finding that the field already was adequately served. We are also told that the Commission filed a petition in a Utah state court to a enjoin respondent from operating between a few specified locations within the State, but that process was never served and nothing in the record tells us what has happened to this action. We may conjecture that respondent fears some form of administrative or judicial action to prohibit its service on routes wholly within the State without the Commission's leave. What respondent asks is that it win any such case before it is commenced. Even if respondent is engaged solely in interstate commerce, we cannot say that there is nothing whatever that the State may require. Eichholz v. Public Service Commission, 306 U.S. 268, 273, 59 S.Ct. 532, 534, 83 L.Ed. 641.
17
A declaratory judgment may be the basis of further relief necessary or proper against the adverse party, 28 U.S.C. § 2202, 28 U.S.C.A. § 2202. The carrier's idea seems to be that it can now establish the major premise of an exemption, not as an incident of any present declaration of any specific right or immunity, but to hold in readiness for use should the Commission at any future time attempt to apply any part of a complicated regulatory statute to it. If there is any more definite or contemporarneous purpose to this case, neither this record nor the briefs make it clear to us. We think this for several reasons exceeds any permissible discretionary use of the Federal Declaratory Judgment Act.
18
In the first place, this dispute has not matured to a point where we can see what, if any, concrete controversy will develop. It is much like asking a declaration that the State has no power to enact legislation that may be under consideration but has not yet shaped up into an enactment. If there is any risk of suffering penalty, liability or prosecution, which a declaration would avoid, it is not pointed out to us. If and when the State Commission takes some action that raises an issue of its power, some further declaration would be necessary to any complete relief. The proposed decree can not end the controversy.
19
Nor is it apparent that the present proceeding would serve a useful purpose if at some future date the State undertakes regulation of respondent. After a sifting of evidence and a finding of facts as they are today, there is no assurance that changes of significance may not take place before the State decides to move. Of course, the remedy is not to be withheld because it necessitates weighing conflicting evidence or deciding issues of fact as well as law. That is the province of courts. Aetna Life Insurance Co. v. Haworth, supra, 300 U.S. at page 242, 57 S.Ct. 464, and see Perkins v. Elg, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320; Currin v. Wallace, 306 U.S. 1, 59 S.Ct. 379, 83 L.Ed. 441. But when the request is not for ultimate determination of rights but for preliminary findings and conclusions intended to fortify the litigant against future regulation, it would be a rare case in which the relief should be granted. Cf. Coffman v. Breeze Corporations, Inc., 323 U.S. 316, 65 S.Ct. 298, 89 L.Ed. 264.
20
Even when there is no incipient federal-state conflict, the declaratory judgment procedure will not be used to preempt and prejudice issues that are committed for initial decision to an administrative body or special tribunal any more than it will be used as a substitute for statutory methods of review. It would not be tolerable, for example, that declaratory judgments establish that an enterprise is not in interstate commerce in order to forestall proceedings by the National Labor Relations Board, the Interstate Commerce Commission or many agencies that are authorized to try and decide such an issue in the first instance. Cf. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638; Eccles v. Peoples Bank, 333 U.S. 426, 68 S.Ct. 641, 92 L.Ed. 784. See Colegrove v. Green, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432. Responsibility for effective functioning of the administrative process can not be thus transferred from the bodies in which Congress has placed it to the courts.
21
But, as the declaratory proceeding is here invoked, it is even less appropriate because, in addition to foreclosing an administrative body, it is incompatible with a proper federal-state relationship. The carrier, being in some disagreement with the State Commission, rushed into federal court to get a declaration which either is intended in ways not disclosed to tie the Commission's hands before it can act or it has no purpose at all.
22
Declaratory proceedings in the federal courts against state officials must be decided with regard for the implications of our federal system. State administrative bodies have the initial right to reduce the general policies of state regulatory statutes into concrete orders and the primary right to take evidence and make findings of fact. It is the state courts which have the first and the last word as to the meaning of state statutes and whether a particular order is within the legislative terms of reference so as to make it the action of the State. We have disapproved anticipatory declarations as to state regulatory statutes, even where the case originated in and was entertained by courts of the State affected. Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 65 S.Ct. 1384, 89 L.Ed. 1725. Anticipatory judgment by a federal court to frustrate action by a state agency is even less tolerable to our federalism. Is the declaration contemplated here to be res judicata, so that the Commission can not hear evidence and decide any matter for itself? If so, the federal court has virtually lifted the case out of the State Commission before it could be heard. If not, the federal judgment serves no useful purpose as a final determination of rights.
23
The procedures of review usually afford ample protection to a carrier whose federal rights are actually invaded, and there are remedies for threatened irreparable injuries. State courts are bound equally with the federal courts by the Federal Constitution and laws. Ultimate recourse may be had to this Court by certiorari if a state court has allegedly denied a federal right.
24
In this case, as in many actions for declaratory judgment, the realistic position of the parties is reversed.6 The plaintiff is seeking to establish a defense against a cause of action which the declaratory defendant may assert in the Utah courts. Respondent here has sought to ward off possible action of the petitioners by seeking a declaratory judgment to the effect that he will have a good defense when and if that cause of action is asserted. Where the complaint in an action for declaratory judgment seeks in essence to assert a defense to an impending or threatened state court action, it is the character of the threatened action, and not of the defense, which will determine whether there is federal-question jurisdiction in the District Court. If the cause of action, which the declaratory defendant threatens to assert, does not itself involve a claim under federal law, it is doubtful if a federal court may entertain an action for a declaratory judgment establishing a defense to that claim. This is dubious even though the declaratory complaint sets forth a claim of federal right, if that right is in reality in the nature of a defense to a threatened cause of action. Federal courts will not seize litigations from state courts merely because one, normally a defendant, goes to federal court to begin his federal-law defense before the state court begins the case under state law. Tennessee v. Union and Planters' Bank, 152 U.S. 454, 14 S.Ct. 654, 38 L.Ed. 511; The Fair v. Kohler Die and Specialty Co., 228 U.S. 22, 33 S.Ct. 410, 57 L.Ed. 716; Taylor v. Anderson, 234 U.S. 74, 34 S.Ct. 724, 58 L.Ed. 1218.
25
Since this case should be dismissed in any event, it is not necessary to determine whether, on this record, the alleged controversy over an action that may be begun in state court would be maintainable under the head of federal-question jurisdiction. But we advert to doubts upon that subject to indicate the injury that would be necessary if the case clearly rested merely on threatened suit in state court, as, for all we can learn, it may.
26
We conclude that this suit cannot be entertained as one for injunction and should not be continued as one for a declaratory judgment. The judgment below should be reversed and modified to direct that the action be dismissed.
27
Reversed and so ordered.
28
Mr. Justice REED, concurring.
29
The record, although uncertain and unsatisfactory, convinces me that a suit was filed in the state court by the Public Service Commission of Utah. This state suit evidently sought to prevent respondent from transporting motion picture film and newsreels between points and places within the State of Utah. This is the portion of transportation between out-of-state points and motion picture exhibitors within Utah that raises the question as to the authority of respondent to operate under the Interstate Commerce Commission certificate. The films are unloaded at Salt Lake City, where they are prepared for exhibition, and stored by the owners until ordered out to the exhibition points. They are then again loaded on respondent's trucks and delivered to the exhibitors. If this final part of the transportation continues the interstate commerce, respondent would be free to operate without further authority from the Utah Commission. If it is intrastate commerce, respondent would need further authority from Utah. It was apparently to determine this question that the Utah Commission filed its suit in the state court. No process was served. Thereafter respondent instituted this proceeding for a declaratory judgment.
30
The authority for this litigation is the Declaratory Judgment Act of 1934, 28 U.S.C. § 2201, 28 U.S.C.A. § 2201. This provides for a judgment declaring 'the rights and other legal relations of any interested parties' in cases 'of actual controversy'.
31
The Act was intended by Congress as a means for parties in such controversies as that between this interstate carrier and the Utah Commission to settle their legal responsibilities and powers without the necessity and risk of violation of the rights of one by the other. The controversy here is clear and definite. A decision would settle the issue that creates the uncertainty as to the parties' rights. See Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617. The Act intended operations to be conducted in the light of knowledge rather than the darkness of ignorance. S.Rep. No. 1005, 73d Cong., 2d Sess.
32
However, it was recognized that the Declaratory Judgment Act introduced a new method for determining rights into the body of existing law. Therefore the language of the Act was deliberately cast in terms of permissive, rather than mandatory, authority to the courts to take cognizance of petitions seeking this new relief.1 This enables federal courts to appraise the threatened injuries to complainant, the necessity and danger of his acting at his peril though incurring heavy damages, the adequacy of state or other remedies, particularly in controversies with administrative bodies. But even in respect to controversies with administrative bodies, the Declaratory Judgment Act exists as an instrument to protect the citizen against the dangers and damages that may result from his erroneous belief as to his rights under state or federal law. Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 300, 63 S.Ct. 1070, 1074, 87 L.Ed. 1407. Cf. Spector Motor Co. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 154, 89 L.Ed. 101; Spector Motor Co. v. O'Connor, 340 U.S. 602, 605, 71 S.Ct. 508, 95 L.Ed. 573. It is a matter of discretion with federal courts.
33
The use of this new method of settlement was illustrated a few years ago in an important case dealing with the jurisdiction of the National Railroad Adjustment Board.2 That case involved a disagreement between two divisions of the National Railroad Adjustment Board as to which division had jurisdiction of disputes involving yardmasters. We held that the settlement of such a jurisdictional dispute concerning an administrative agency was a proper subject for a declaratory judgment where the controversy resulted in a complete stalemate. Here, the record does not show any unusual danger of loss or damage to respondent, a suit had already been filed and the record shows no reason why its result would not settle this controversy. Because of these circumstances, I concur with the reversal of the judgment.
34
Mr. Justice DOUGLAS, dissenting.
35
Respondents hold a certificate of public convenience and necessity from the Interstate Commerce Commission for the transportation of motion picture films and news reels from Salt Lake City, Utah, to points in Utah, Idaho, and Montana. Their transportation to Utah points is interstate commerce according to the Court of Appeals; and with that conclusion I agree since the movement in Utah is part of a continuing interstate stream. The threat of interference with that interstate activity by the Utah Public Service Commission is clear and immediate. First. The Utah Commission brought suit to enjoin those interstate activities and that suit is now pending in the Utah court. Second. The Commission's answer in the District Court denied that it was interfering with interstate commerce, not because it did not intend to prevent respondent from operating, but on the ground that the operations were deemed to be intrastate commerce and therefore subject to its regulation. Similarly, the District Court's finding that there was no interference with interstate commerce was based on an acceptance of the Commission's contentions as to the nature of respondent's business. Third. In their brief here petitioners assert that the Utah Commission 'will prevent the respondent from conducting' this business 'unless and until he is authorized to do so by appropriate administrative order' of the Utah Commission, since in the Commission's view the transportation is in intrastate commerce.
36
That for me is threat enough. Moreover, Utah is not attempting to regulate a phase of interstate business that is within the reach of a State's police power. She is endeavoring to make respondent obtain a permit to do an interstate business for which the respondent already holds a federal permit, under threat that unless he obtains a Utah permit, Utah will stop him from conducting the interstate business. That is an attempt to regulate in a field pre-empted by the Congress under the Motor Carrier Act, 49 U.S.C. § 301 et seq., 49 U.S.C.A. § 301 et seq. That kind of regulation is precluded by our decision in Buck v. Kuykendall, 267 U.S. 307, 45 S.Ct. 324, 69 L.Ed. 623.
37
Thus the controversy is definite and concrete and involves legal interests of adverse parties. The test laid down for declaratory judgments by Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617, is thus satisfied. I have said enough to show that the judges who heard this case below knew that they were dealing with a live, active contest that theatened serious consequences to respondent, not with a hypothetical question that might have practical repercussions only in the remote future.
38
The fact that the Utah court can adjudicate the controversy in the pending state case is no reason why the federal court should stay its hand. There is no federal policy indicating that this is a field in which federal courts should be reluctant to intervene. That was the case in Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407, where we held that declaratory relief that a state tax was unconstitutional should be denied by the federal court. The basis of our ruling was that since Congress had prohibited the federal courts from enjoining state taxes where an adequate remedy was available in the state courts, cf. Township of Hillsborough, Somerset County, N.J. v. Cromwell, 326 U.S. 620, 623, 66 S.Ct. 445, 448, 90 L.Ed. 358, declaratory relief should also be withheld. Congress here has given no indication that the integrity of permits granted interstate carriers by the Interstate Commerce Commission should be protected in the state rather than in the federal courts. All the presumptions are contrary. The basis of the jurisdiction of the District Court created by Congress is clear. The case 'arises under the Constitution' and 'laws' of the United States. 28 U.S.C. § 1331, 28 U.S.C.A. § 1331. It is proper that the federal court, absent such special circumstances as the Huffman case presented, exercise that jurisdiction and protect the federal right.
39
The failure to do it here relegates the declaratory judgment to a low estate.
1
10 Cir., 195 F.2d 252, 254.
2
343 U.S. 975, 72 S.Ct. 1074.
3
See 28 U.S.C. § 2201, 28 U.S.C.A. § 2201.
4
S.Rep.No.7005, 73d Cong., 2d Sess., May 10, 1934; Borchard, Declaratory Judgments (2d ed. 1941), 1043, 1048.
5
Borchard, op. cit., 1042.
6
See, Developments—Declaratory Judgments, 62 Harv.L.Rev. 787, 802.
1
H.R.Rep.No.1264, 73d Cong., 2d Sess., P. 2; Borchard, Declaratory Judgments (2d ed. 1941), 312; Brillhart v. Excess Insurance Co., 316 U.S. 491, 494, 62 S.Ct. 1173, 1175, 86 L.Ed. 1620.
2
Order of Ry. Conductors v. Swan, 329 U.S. 520, 67 S.Ct. 405, 91 L.Ed. 471.
| 89
|
344 U.S. 298
73 S.Ct. 307
97 L.Ed. 337
AMERICAN TRUCKING ASS'NS, Inc. et al.v.UNITED STATES et al. EASTERN MOTOR EXP., Inc., et al. v. UNITED STATES et al. SECRETARY OF AGRICULTURE OF UNITED STATES v. UNITED STATES et al.
Nos. 26, 35, 36.
Argued Nov. 17 and 18, 1952.
Decided Jan. 12, 1953.
Rehearing Denied March 9, 1953.
See 345 U.S. 913, 73 S.Ct. 638.
[Syllabus from pages 298-299 intentionally omitted]
Mr. Harry E. Boot, Washington, D.C., and Wilber M. Brucker, Detroit, Mich., for American Trucking Associations, Inc., and others.
Mr. Howell Ellis, Indianapolis, Ind., for Eastern Motor Express, Inc., and others.
Mr. Neil Brooks, Washington, D.C., for Secretary of Agriculture of the U.S.
Mr. Ralph S. Spritzer, Washington, D.C., for the United States and I.C.C.
Mr. Burton K. Wheeler, Washington, D.C., for Teamsters Union.
Mr. Carl Helmetag, Jr., Philadelphia, Pa., for Intervening Railroads.
Mr. Justice REED delivered the opinion of the Court.
1
These appeals attack new Interstate Commerce Commission rules governing the use of equipment by authorized motor carriers when the equipment is not owned by the carrier but is leased from the owner or obtained by interchange with another authorized carrier. They were prescribed by the Commission and reported Ex Parte No. MC—43, Lease and Interchange of Vehicles by Motor Carriers, 52 M.C.C. 675. As will be seen from the portions we have quoted in the Appendix, they principally require carrier inspection; when the equipment is leased, control for a minimum of thirty days and a method of compensation other than division of revenues between lessor and lessee; and, in the case of use of another carrier's equipment, authorization to the exchange point and actual transfer of control. Thus the practice of using leased equipment and that obtained by interchange is brought into conformity with the regulation of carrier-owned equipment to avoid evils that had grown up in that practice.
2
Some six suits were instituted to test the validity of the rules in the district courts under 28 U.S.C. §§ 2321—2325, 28 U.S.C.A. §§ 2321—2325. Three were stayed by orders and one was not moved pending disposition of the instant cases.1 These came here on direct appeal from two separate judgments denying the injunctive relief prayed for; one in the Southern District of Indiana, Eastern Motor Express, Inc. v. United States, 103 F.Supp. 694, and the other in the Northern District of Alabama, American Trucking Associations, Inc. v. United States, 101 F.Supp. 710. The issues there considered and resolved against the applicants concerned the Commission's authority under the Motor Carrier Act of 1935, Interstate Commerce Act, Part II, 49 Stat. 543, as amended, 54 Stat. 919, 49 U.S.C. § 301 et seq., 49 U.S.C.A. § 301 et seq.; the impact of the rules on agricultural trucking and on the guaranteed right of authorized carriers to augment their equipment; the application of the Administrative Procedure Act, 5 U.S.C. § 1001 et seq., 5 U.S.C.A. § 1001 et seq.; and the right of the protestants to introduce additional evidence in the district courts. Since there were only minor differences in the content of the two cases appealed, they may be treated together.
3
I. Introduction.—We consider at the outset the existing conditions of the motor truck industry and its regulation as developed during the Commissioner's hearings because only against such a background are the rules meaningful. Commission authorization in the form of permits or certificates of convenience and necessity is a precondition to interstate service by virtue of the Motor Carrier Act. Such authorization, except under the 'grandfather' clause, is granted only after a showing of fitness and ability to perform and a public need for the proffered service. And it specifically limits the scope and business of the permitted operations in the case of a contract carrier, and the routes and termini which may be served by a certificated common carrier.2
4
The Act waives these conditions of agency authorization and service limitations for a sizable portion of the industry, however. Most important of the exempt operations are those involving equipment used in the transportation of agricultural products. By and large, the equipment in this category is owned and operated by the same person. It falls only within the Commission's jurisdiction over drivers' qualifications, hours of service and safety.3 And so there is no mandate on these exempt owner-operators to provide adequate and nondiscriminatory service, adhere to published rates, and comply with the strict insurance requirements imposed on carriers authorized for general carriage.4
5
Because of the limiting character of the regulatory system, authorized carriers have developed a wide practice of using non-owned equipment. They have moved in two directions. The first is interchange. This includes those arrangements whereby two or more certificated carriers provide for through travel of a load in order to merge the advantages of certification to serve different areas. In this fashion, a wholly or partially loaded trailer may be exchanged at the established interchange point, or even an entire truck travel the line without interruption, under the guise of a shift in control. The second is leasing. This relates to the use of exempt equipment in authorized operations. Carriers subject to Commission jurisdiction have increasingly turned to owner-operator truckers to satisfy their need for equipment as their service demands. By a variety of arrangements, the authorized carriers hire them to conduct operations under the former's permit or certificate. Such operators thus travel approved routes with nonexempt property, and in the great majority of instances sever connections with their lessee carrier at the end of the trip.5
6
The use of nonowned equipment by authorized carriers is not illegal, either under the Act or the rules under consideration.6 But evidence is overwhelming that a number of satellite practices directly affect the regulatory scheme of the Act, the public interest in necessary service and the economic stability of the industry, and it is on these that the rules focus. It appears, for instance, that while many arrangements are reduced to writing, oral leases are common; some were concluded after the trips were made and in several cases exampt operators solicited business themselves with blank authorized carrier forms or other evidence of agency. It is strongly urged that this very informality of the contractual relationship between carrier and exempt operator creates conditions in the industry inconsistent with those which the Act contemplates. Proof was proffered during the proceedings that the informal and tenuous relationships in lease and interchange permit evasions of the limitations on certificated or permitted authority. Since the driver of the exempt equipment is not an employee of the carrier, sanctions for violation of geographical restrictions are clearly difficult to impose, especially in the case of the single-trip lessor. Interchange may, as well, become a device to circumvent geographical restrictions in the certificate. The practice of authorized carriers conducting operations beyond the territory they are entitled to serve under cover of a lease from the local carrier was clearly shown in the evidence before the Commission. It appeared, in fact, that some of these operations are entirely fictional, being created ad hoc after the trip is made—and this at times in the wake of a specific denial by the Commission of an application to serve the area.
7
It was also alleged, and shown by evidence of some incidents, that the Commission's safety requirements were not observed by exempt lessors. Because of the fact that the great bulk of the arrangements cover only one trip, leasing carriers have little opportunity or desire to inspect the equipment used, especially in cases where the agreement is made without the operator's appearance at the carrier's terminal. Enforcement sanctions by the carriers for violations would be clearly as difficult to impose as route standards. Hence, the carrier may not extent the supervision of rest periods, doctors' certificates, brakes, lights, tires, steering equipment and loading, normally accorded his own employees and vehicles, to equipment and drivers secured through lease. And the owner-operator himself is called upon to push himself and his truck because of the economic impact of time spent off the road and investment in repairs on his slim profit margin.7 Further, the absence of written agreements has made the fixing of the lessee's responsibility for accidents highly difficult.
8
Consequences on the economic stability of the industry were also noted. The carrier engaged in leasing practice is at the mercy of the cost and supply of exempt equipment available to him. Hence, he may at times find himself unable to undertake shipping obligations because no trucks are available willing to make a relatively unprofitable trip or to assume the burdens of less-than-carload service. Certification is granted on a showing that a concern is fit and willing to provide nondiscriminatory service required by the public convenience. To sustain this obligation, the authorized integrated carrier who finds his leasing competitor only willing to undertake the more profitable ventures may be obliged to rely on miscellaneous freight without compensating economic long carload hauls to sustain estimated profit margins.
9
Use of exempt equipment by authorized carriers also tends to obstruct normal rate regulation. Schedules are traditionally grounded in costs. But the cost picture of a carrier who depends largely on leased equipment is far different from that of a carrier owning his own trucks. Not only is the former able to undertake operations with relatively slight investment. As well, his current overhead involved in operating leased equipment is solely administrative, the owner of the exempt equipment bearing the expense of gas, oil, tires, wages and depreciation out of his share of the fee. And to refer to the exempt owner's own expenses as determinative of what is a 'reasonable' rate would be manifestly impossible as long as the relationships between lessor and lessee are too tenuous, short-termed and informed and the compensation of each based on a division of revenue.
10
It is claimed that the practice in fact has had a demoralizing effect on the industry. Authorized carriers find it advantageous to expand their operations by leased equipment because of the fact that no investment is required, nor is the risk of empty return trips and other overhead incurred. Hence, carriers owning their own trucks face a fluid rate structure in competition with those specializing in use of exempt equipment, especially where such equipment is offered for a trip, as it often is, for expenses. There is thus a pressure on the certificated operator to enter the leasing field and hence expand the effect of these conditions and practices on efficient, safe and nondiscriminatory truck service which the Act is designed to promote.
11
II. Commission Proceedings.—All before us admit the difficulties which have developed. In fact, the Commission has considered them for some years. As early as 1940, following complaints, the Bureau of Motor Carriers held hearings on the subject which culminated in a statistical report in 1943. The necessity of maximum use of transportation resources during the war postponed any action thereafter until 1947.8 In that year, however, the Director of the Bureau reinstituted discussion, had suggested regulations drafted, and drew on his field staff for reports of the use of the exempt vehicles by authorized carriers. The present proceedings were instituted by the Commission on January 9, 1948, when it became apparent that carrier agreement regarding a proper solution was unlikely. Its order, published at 13 Fed.Reg. 369, declared all authorized carriers respondents and set forth the practices to be investigated, four possible schemes of regulation, and suggested rules. A qualified examiner thereafter heard some 80 witnesses in Washington and St. Louis, and issued a report and proposed rules. A full report by the Commission's Division 5 followed on June 26, 1950, confirming the examiner's findings and amending his proposals,9 and, following petitions for reconsideration, the entire Commission reopened proceedings for oral argument. The Commission's report, dated May 8, 1951, in effect adopted the Examiner's proposed rules, after affirming and reiterating the nature and effect of leasing and interchange practices on the industry and regulation under the Act.
12
III. The Rules.—In this final form, the rules establish as conditions to the use of nonowned equipment by authorized carriers the reduction of the contracts to writing. Rule § 207.4(a)(2), 52 M.C.C. 743. It is required that such contracts vest exclusive possession of, and responsibility for, the equipment in the authorized carrier during the rental, Rule § 207.4(a)(4), the life of which must exceed thirty days when the driver is the owner or his employee. Rule § 207.4(a)(3). Finally, the contract must fix the compensation of the lessor, which may not be measured by a percentage of the gross revenue. Rule § 207.4(a)(5). Interchange agreements between two authorized carriers must also be in writing and the equipment must be driven by an employee of the certificated carrier over whose authorized route it travels. Rule § 207.5(a), (c).
13
The rules also require inspection of non-owned equipment when the lessee carrier takes possession, Rule § 207.4(c), as well as the identification of the trucks as within its responsibility, Rule § 207.4(d), and the testing of the driver's familiarity with Motor Carrier Safety Regulations. Rule § 207.4(e). Records of the use of rented and interchanged equipment are mandatory. Rule § 207.4(f).
14
IV. Commission Authority.—Appellants focus their principal attack on the lease provisions requiring a thirty-day period of carrier control and a measure of compensation other than revenue splitting. All agree that the rules thus abolish trip leasing. Unfortunate consequences are predicated for the public interest because the exempt owner-operator will no longer be able to hire himself out at will—in sum, that the industry's ability to serve a fluctuating demand will suffer and transportation costs accordingly go up. It is the Commission's position that the industry and the public will benefit directly because of the stabilization of conditions of competition and rate schedules, and that in fact the continued effectiveness of the Commission's functions under the Motor Carrier Act is dependent on regulation of leasing and interchange. Needless to say, we are ill equipped to weigh such predictions of the economic future. Nor is it our function to act as a super-commission. So we turn to the legal considerations so strongly urged on us.
15
Here, appellants have framed their position as a broadside attack on the Commission's asserted power. All urge upon us the fact that nowhere in the Act is there an express delegation of power to control, regulate or affect leasing practices,10 and it is further insisted that in each separate provision of the Act granting regulatory authority there is no direct implication of such power. Our function, however, does not stop with a section-by-section search for the phrase 'regulation of leasing practices' among the literal words of the statutory provisions. As a matter of principle, we might agree with appellants' contentions if we thought it a reasonable canon of interpretation that the draftsmen of acts delegating agency powers, as a practical and realistic matter, can or do include specific consideration of every evil sought to be corrected. But no great acquaintance with practical affairs is required to know that such prescience, either in fact or in the minds of Congress, does not exist. National Broadcasting Co. v. United States, 319 U.S. 190, 219—220, 63 S.Ct. 997, 1010—1011, 87 L.Ed. 1344; Phelps Dodge Corp. v. Labor Board, 313 U.S. 177, 193—194, 61 S.Ct. 845, 852, 85 L.Ed. 1271. Its very absenceMoreover, is precisely one of the reasons why regulatory agencies such as the Commission are created, for it is the fond hope of their authors that they bring to their work the expert's familiarity with industry conditions which members of the delegating legislatures cannot be expected to possess. United States v. Pennsylvania R. Co., 323 U.S. 612, 65 S.Ct. 471, 89 L.Ed. 499.
16
Moreover, we must reject at the outset any conclusion that the rules as a whole represent an attempt by the Commission to expand its power arbitrarily; there is clear and adequate evidence of evils attendant on trip leasing. The purpose of the rules is to protect the industry from practices detrimental to the maintenance of sound transportation services consistent with the regulatory system. Sections 216(b) and 218(a) of the Act, for instance, require the filing of a just and reasonable rate schedule by each common carrier, and the violation of these rates and the demoralization of rate structures generally are a probable concomitant of current leasing practices. Section 204(a)(2) requires the Commission to impose rules relating to safety of operation for vehicles and drivers. These are likewise threatened by the unrestricted use of nonowned equipment by the common carriers. And the requirements of continuous service in § 204(a)(1), of observance of authorized routes and termini under §§ 208(a) and 209(b), and the prohibitions of rebates, §§ 216(d), 217(b), 218(a) and 222(c), also may be ignored through the very practices here proscribed.
17
So the rules in question are aimed at conditions which may directly frustrate the success of the regulation undertaken by Congress. Included in the Act as a duty of the Commission is that '(t)o administer, execute, and enforce all provisions of this part, to make all necessary orders in connection therewith, and to prescribe rules, regulations, and procedure for such administration'. 204(a)(6). And this necessary rule-making power, coterminous with the scope of agency regulation itself, must extend to the 'transportation of passengers or property by motor carriers engaged in interstate or foreign commerce and to the procurement of and the provision of facilities for such transportation,' regulation of which is vested in the Commission by § 202(a). See also § 203(a) (19).
18
We cannot agree with appellants' contention that the rule-making authority of § 204(a)(6) merely concerns agency procedures and is solely administrative. It ignores the distinct reference in the section to enforcement. Furthermore, the power of the Commission to make rules applicable to transfers of certificates or permits is recognized by § 212(b). That section permits transfers 'pursuant to such rules and regulations as the Commission may prescribe.' It does not strain logic or experience to look upon leasing of exempt equipment and interchange as a transfer, temporary in nature, of the carrier's authorized right to serve his specified area; in fact we think this interpretation is dramatically supported here by the evidence that owner-operators themselves take the initiative in securing cargoes, while the carriers accept only the administrative function of approving the use of the non-owned equipment over their authorized routes and under their names. It is an unnatural construction of the Act which would require the Commission to sit idly by and wink at practices that lead to violations of its provisions.
19
We hold then that the promulgation of these rules for authorized carriers falls within the Commission's power, despite the absence of specific reference to leasing practices in the Act. See General American Tank Car Corp. v. El Dorado Terminal Co., 308 U.S. 422, 432, 60 S.Ct. 325, 331, 84 L.Ed. 361. The grant of general rulemaking power necessary for enforcement compels this result. It is foreshadowed, of course, by United States v. Pennsylvania R. Co., 323 U.S. 612, 65 S.Ct. 471, 89 L.Ed. 499. That case validated an order requiring railroads to lease cars to a competing carrier by sea, in spite of the inability of the Commission to ground its action on some specific provision of the Act. 323 U.S. at page 616, 65 S.Ct. at page 473. This Court pointed to the fact that the 'unquestioned power of the Commission to require establishment of (through) routes would be wholly fruitless, without the correlative power to abrogate the Association's rule which prohibits the interchange.' 323 U.S. at page 619, 65 S.Ct. at page 475. There is evidence here that convinces us that that regulation of leasing practices is likewise a necessary power; in fact, we think its exercise more crucial than in United States v. Pennsylvania R. Co. The enforcement of only one phase of the Act was there endangered; here, practically the entire regulatory scheme is affected by trip-leasing.
20
A fair analogy appears between the conditions which brought about the Motor Carrier Act and those sought to be corrected by the present rules, confirming our view of the Commission's jurisdiction. Then the industry was unstable economically, dominated by ease of competitive entry and a fluid rate picture. And as a result, it became overcrowded with small economic units which proved unable to satisfy even the most minimal standards of safety or financial responsibility.11 So Congress felt compelled to require authorization for all interstate operations to preserve the motor transportation system from over-competition, while at the same time protecting existing routes through the 'grandfather' clause.12 The Commission's rule-making here considered is based on conditions that similarly threaten, though perhaps to a lesser degree, the efficient operation of the industry today.
21
And as exercised, the power under § 204(a)(6) is geared to and bounded by the limits of the regulatory system of the Act which it supplements. It is thus as clearly defined for constitutional purposes as the specified functions of the Commission, and so reliance on Schecter Poultry Corp. v. United States, 295 U.S. 495, 529, 55 S.Ct. 837, 843, 79 L.Ed. 1570, and Panama Refining Co. v. Ryan, 293 U.S. 388, 421, 55 S.Ct. 241, 254, 79 L.Ed. 446, is misplaced. We reject for similar reasons the contention that Federal Power Commission v. Panhandle Eastern Pipe Line Co., 337 U.S. 498, 69 S.Ct. 1251, 93 L.Ed. 1499, is controlling here. Our holding that the Federal Power Commission's authority did not extend to production and gathering of natural gas was specifically grounded in a provision of the Natural Gas Act to that effect. 337 U.S. at pages 504—505, 69 S.Ct. at pages 1255—1256.
22
V. The National Transportation Policy.—What we have said above answers appellants' companion contention that the rules are invalid because they violate the National Transportation Policy as set out in 49 U.S.C., preceding § 1, 49 U.S.C.A. preceding § 1. Regulation under the Act is there declared to be in the interests of the preservation of the inherent advantages of all modes of transportation, and of an economically sound, safe, and efficient industry. See United States v. Rock Island Motor Transit Co., 340 U.S. 419, 71 S.Ct. 382, 95 L.Ed. 391, and United States v. Texas & Pacific Motor Transportation Co., 340 U.S. 450, 71 S.Ct. 422, 95 L.Ed. 409. But no overly-nice distinction between law and policy is needed to support the view that the question is hardly one for the courts; it is clear that the rules represent, at best, a compromise between stability and flexibility of industry conditions, each alleged to be in the national interest, and we can only look to see if the Commission has applied its familiarity with transportation problems to these conflicting considerations. The mere fact that a contrary position was taken during the war years when active interchange and leasing were required,13 that the Commission has never before restricted trip-leasing and has in fact approved it from time to time,14 does not change our function.
23
VI. Reasonableness of Rules and Exemptions Therefrom.—The relationship of these rules to the regulatory scheme they are designed to protect forms a basis for the answer to the various allegations that certain rules are arbitrary. For our purposes, such an argument must mean that the Commission had no reasonable ground for the exercise of judgment. In the instant case, such is not the situation; the evidence marshalled before the Commission plainly supports the conclusion that the continued effectiveness of its regulation requires the rules prescribed.
24
We also affirm a reasonable relationship between the aims of the federal regulatory scheme and the exemptions in the rules. That as to interchange between carriers over routes which both are authorized to serve, Rule § 207.3( a), is founded on the proposition that unauthorized certificate extensions are here impossible. The exemption extended to trucking equipment used in railway express operations, Rule § 207.3(b), which are largely confined to municipalities and contiguous areas, and short trips, duplicates the similar exemption applicable to contract and common carriers in Rule § 207.3(c). It is alleged that the exclusion of the substituted motor-for-rail transport equipment from the rules' coverage by Rule § 207.3(b) also is based on the fact that the evils of unauthorized service, law observation of safety regulations, and demoralized competitive conditions are not present in such operations. As the Commission found, the leasing practices in the field are undertaken through long-term contracts with certain established lessors, and the equipment inspected and controlled by the railroads, and identified with its name. In such a context, the exemption is not unreasonable; certainly it is not required that the Commission extend its supervisory activities under the rules into fields where the evidence before it indicates no need, merely to satisfy some standard of paper equality. And this is especially so in the field of substituted motor-for-rail carriage which falls within the Commission's strict regulation by virtue of the restrictions which we approved in United States v. Rock Island Motor Transit Co., 340 U.S. 419, 71 S.Ct. 382, 95 L.Ed. 391, and United States v. Texas & Pacific Motor Transportation Co., 340 U.S. 450, 71 S.Ct. 422, 95 L.Ed. 409. The exemption for plans of operations merged under § 5 of the Act, 49 U.S.C.A. § 5, Rule § 207.3(d), is said to have been directed solely toward Allied Van Lines, whose § 5 proceeding, reported Evanston Fireproof Warehouse—Control—Allied Van Lines, 40 M.C.C. 557, involving a unique leasing arrangement by stockholding hauling agents under the company's name, has already been scrutinized by the Commission. Since Allied operates entirely with equipment supplied under this arrangement, and since the Commission has specifically approved it, it seems to us that the exemption has a reasonable basis; the guarantees of insurance coverage, financial responsibility, lessee route control and equipment identification in Allied's operations, 40 M.C.C. 551, 563—566, promise protection against the evils the rules seek the correct.
25
VII. Preservation of the Right to Augment Equipment. Appellants further contend, however, that the rules in effect will violate the protections in §§ 208(a) and 209(b) of the Act of the carriers' right to augment their equipment.15 We do not agree. The provisos in question are not to be read as blanket restrictions on the Commission's regulatory powers; they are aimed at the restrictions on the increase in volume of traffic through acquisition of additional vehicles. Clearly, a numerical limitation would be invalid, but the Commission's refusal to permit carriers to secure and use equipment which does not satisfy its safety, loading, and licensing rules would not. As we pointed out in Crescent Express Lines, Inc., v. United States, 320 U.S. 401, 408, 64 S.Ct. 167, 170, 171, 88 L.Ed. 127, in sustaining a certificate limited to seven-passenger vehicles, since § 208 (requires the Commission to specify the service to be rendered, this could not be done without power also to specify the general type of vehicle to be used.' We think it equally apparent that regulation of the conditions and circumstances of the use of nonowned vehicles is not a 'limitation on the addition of more vehicles of the authorized type'. 320 U.S. at page 409, 64 S.Ct. at page 171.
26
VIII. Preservation of Agricultural Exemption.—As indicated above, the Act also exempts from Commission jurisdiction 'motor vehicles used in carrying property consisting of ordinary livestock, fish (including shell fish), or agricultural commodities (not including manufactured products thereof), if such motor vehicles are not used in carrying any other property, or passengers, for compensation'; § 203(b)(6),16 and appellants, and particularly the intervening Secretary of Agriculture, urge that the rules will drastically reduce the significance of this section in violation of Congress' intent. All admit, of course, that the rules do not directly apply to agricultural equipment; it is merely required that authorized carriers using such trucks comply with certain provisions. But it is contended that the preconditions to such use imposed on those within Commission jurisdiction will wipe out much of the traffic which the agricultural carriers have heretofore engaged in. It appears, for instance, that a substantial leasing is built on agricultural haulers who would otherwise return empty to their place of departure, having unloaded the farm produce carried; the authorized carriers have found them prepared to accept a one-trip engagement for the return route. The thirtyday lease provision will make such arrangements impossible.
27
We are unable, however, to conclude that the economic danger to the agricultural truckers from these rules constitutes a violation of § 203(b)(6). The mere fact that commercial carriers of agricultural products will hereafter be required to establish their charges on the basis of an empty return trip is not the same as bringing them within Commission jurisdiction generally. The exemption extends, by its own words, to carriage of agricultural products, and not to operations where the equipment is used to carry other property. Needless to say, the statute is not designed to allow farm truckers to compete with authorized and certificated motor carriers in the carriage of non-agricultural products or manufactured products for off-the-farm use, merely because they have exemption when carrying only agricultural products. We can therefore find nothing in it which implies protection of agricultural truckers' right to haul other property, even though from an economic standpoint that right is important to protect profit margins. Regulated truckers must also receive protection upon their restricted routes and limited carriage. A balance between these competing factors, carried out in accordance with congressional purpose,17 does not seem to us unreasonable or invalid.
28
IX. Agency Procedure.—We need not pause long over certain procedural objections which appellants have interposed. They object that the rules were the product of proceedings fatally at variance with certain requirements of the Administrative Procedure Act. Appellants In No. 35 point to the requirement of § 7(c), that 'the proponent of a rule or order shall have the burden of proof', and insist that the Commission, or its Motor Carriers Bureau which drew up suggested rules published as a supplement to the hearing order, 13 Fed.Reg. 369, did not satisfy this burden by preponderating evidence. But even assuming that the Commission was a statutory 'proponent' of the regulation and that it did not actively introduce the requisite degree of proof in support of its position, we think it plain that the requirement is inapplicable to the instant proceedings. For § 7 of the Administrative Procedure Act is limited by its own terms to 'hearings which section 4 or 5 requires to be conducted pursuant to this section'. Turning to those sections, it is found that they invoke § 7 only when specified by statute: 'Where rules are required by statute to be made on the record after opportunity for an agency hearing, the requirements of sections 7 and 8 shall apply in place of the provisions of this subsection.'18 In short, s 7 applies only when hearings were required by the statute under which they were conducted to be made on the record and with opportunity for oral hearing. As we have pointed out, the rule-making authority in the instant case stems from § 204(a)(6) of the Motor Carrier Act; nothing there requires record or hearing, in direct contrast with the rate-making procedure provisions of §§ 216(e) and 218(b). Hence, whatever our view of the substantiality of the evidence, we do not think that the rules must fall because the Commission failed to assume and satisfy a 'burden of proof.'
29
Similar reasoning supports our conclusion that § 8(b) of the Administrative Procedure Act, which requires that decisions shall 'include a statement of (1) findings and conclusions' invoked by appellants in No. 26, is likewise inapplicable. For it, in turn, is limited to a 'hearing * * * required to be conducted in conformity with section 7'.
30
X. Right to Introduce Evidence of Confiscation.—Finally, appellants assign as error the refusal of the District Court in No. 35 to permit introduction of additional oral evidence there. Their offer of proof indicated that it would concern the 'value of Plaintiffs' property and rights' and 'the effect of the order on said property and rights.' This Court has indicated many times, it is true, that those concerned with an order affecting their just compensation for transportation services must be heard; indeed, their right to introduce evidence to support the claim that the order in question will unconstitutionally confiscate their property may be enforced even in the District Court, if the Commission bars an opportunity to do so. Manufacturers R. Co. v. United States, 246 U.S. 457, 488—490, 38 S.Ct. 383, 392, 62 L.Ed. 831; St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 53 54, 56 S.Ct. 720, 726—727, 80 L.Ed. 1033; Baltimore & Ohio R. Co. v. United States, 298 U.S. 349, 362—369, 56 S.Ct. 797, 804—808, 80 L.Ed. 1209; New York v. United States, 331 U.S. 284, 334—335, 67 S.Ct. 1207, 1233—1234, 91 L.Ed. 1492.
31
But the right is not to be construed as an avenue toward delay. The claim of confiscation must be substantial, the import of the proffered evidence clear, and the inability to test the question before the Commission patent, in order to justify an oral hearing on the question in the courts. In the case at bar, appellants seek in substance to show that the outlawing of trip-leasing will affect their business; perhaps they might even be able to prove that some concerns would fail if they were unable in the future to resort to nonowned equipment for short periods. In this context, however, we do not think that a right to trial de novo is automatically established merely because the Commission denied a petition for rehearing which invoked constitutional principles. In the first place, there was in truth a multitude of evidence before the Commission on the importance of trip-leasing to some concerns. Moreover, we are clear that appellants had an opportunity to introduce this very evidence in the agency proceedings, for it required no great prescience, in view of the notice of the hearings published by the Commission, to know that they would concern the importance and desirability of the very practices appellants seek to protect.
32
'Confiscatory' is not a magic word. Whether it should open the door to further proceedings depends on the nature of the order attacked. We think a claim of rate confiscation, which was the concern of the cases just cited, stands on a fundamentally different footing from that made in the instant case.19 Rate-making represents an order affecting the volume of income; it is said to confiscate property when it prohibits a reasonable return on investment beyond operating and initial costs. But the economic significance of the abolishment of trip-leasing is not nearly so direct. The Commission has merely determined by what method the carrier's income is to be produced, and not how much it may charge.
33
It is true that we have admonished the Commission and the courts to permit introduction of evidence on the economic impact of a rate order where the claim that it could not have been proffered during the original proceedings was genuine. But that was because the 'constitutional right of compensation', St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 54, 56 S.Ct. 720, 727, 80 L.Ed. 1033, was drawn in question. Here, appellants can make no comparable claim. They attack an order which is valid even if its effect is to drive some operators out of business. As we have indicated, the rule-making power is rooted in and supplements Congress' regulatory scheme, which in turn derives from the commerce power. The fact that the value of some going concerns may be affected, therefore, does not support a claim under the Fifth Amendment, if the rules and the Act be related, as we have said they are, to evils in commerce which the federal power may reach.20 This being the case, appellants had no constitutional claim in support of which they are entitled to introduce evidence de novo, and the court did not err in sustaining the objection thereto.
34
Affirmed.
35
Appendix.
36
Rules prescribed governing the practices of authorized carriers of property by motor vehicle in Interstate or Foreign Commerce in (1) augmenting equipment, (2) interchanging of equipment, and (3) renting vehicles or equipment to private carriers or shippers.
37
s 207.3. Examptions.—Other than § 207.4(c) and (d), relative to inspection and identification of equipment, these rules shall not apply—
38
(a) To equipment leased by one authorized carrier operating over regular routes to another authorized carrier operating over regular routes and operated between points and over routes which both lessor and lessee are authorized to serve, and to equipment leased by one authorized carrier operating over irregular routes to another such carrier and operated between points and within territory which both the lessor and lessee are authorized to serve;
39
(b) To equipment utilized wholly or in part in the transportation of railway express traffic, or in substituted motor-for-rail transportation of railroad freight moving between points that are railroad stations on railroad billing;
40
(c) To equipment utilized in transportation performed solely and exclusively within any municipality, contiguous municipalities, or commercial zone, as defined by the Commission;
41
(d) To equipment utilized by an authorized carrier in transportation performed pursuant to any plan of operation approved by the Commission in a proceeding arising under section 5 of the Interstate Commerce Act.
42
s 207.4. Augmenting equipment.—Other than equipment exchanged between motor common carriers in interchange service as defined in § 207.5 of these rules, authorized carriers may perform authorized transportation in or with equipment which they do not own only under the following conditions;
43
(a) The contract, lease, or other arrangement for the use of such equipment—
44
(1) Shall be made between the authorized carrier and the owner of the equipment;
45
(2) Shall be in writing and signed by the parties thereto, or their regular employees or agents duly authorized to act for them in the execution of contracts, leases, or other arrangements;
46
(3) Shall specify the period for which it applies, which shall be not less than 30 days when the equipment is to be operated for the authorized carrier by the owner or employees of the owner; * * *
47
(4) Shall provide for the exclusive possession, control and use of the equipment, and for the complete assumption of responsibility in respect thereto, by the authorized carrier, * * *
48
(5) Shall specify the compensation to be paid by the lessee for the rental of the leased equipment; provided, however, that such compensation shall not be computed on the basis of any division or percentage of any applicable rate or rates on any commodify or commodities transported in said vehicle or on a division or percentage of any revenue earned by said vehicle during the period for which the lease is effective; (6) Shall specify the time and date or the circumstance on which the contract, lease, or other arrangement begins, and the time or the circumstance on which it ends. The duration of the contract, lease, or other arrangement shall coincide with the time for the giving of receipts for the equipment, as required by paragraph (b) of this section.
49
(c) Inspection of equipment.—It shall be the duty of the authorized carrier, before taking possession of equipment, to inspect the same or to have the same inspected. * * *
50
(d) Identification of equipment.—The authorized carrier acquiring the use of equipment under this rule shall properly and correctly identify such equipment as operated by it. * * *
51
(e) Driver of equipment.—Before any person other than a regular employee of the authorized carrier is assigned to drive equipment operated under these rules, it shall be the duty of the authorized carrier to make certain that such driver is familiar with, and that his employment as a driver will not result in, violation of any provision of parts 192, 193, 195, and 196 of the Motor Carrier Safety Regulations (Rev.) pertaining to 'Driving of Motor Vehicles,' 'Parts and Accessories Necessary for Safe Operation,' 'Hours of Service of Drivers,' and 'Inspection and Maintenance,' and to require such driver to furnish a certificate of physical examination in accordance with part 191 of the Motor Carrier Safety Regulations (Rev.) pertaining to 'Qualifications of Drivers,' or, in lieu thereof, a photostatic copy of the original certificate of physical examination, which shall be retained in the authorized carrier's file.
52
(f) Record of use of equipment.—The authorized carrier utilizing equipment operated under these rules shall prepare and keep a manifest covering each trip for which the equipment is used in its service, containing the name and address of the owner of such equipment, the make, model, year, serial number, and the State registration number of the equipment, and the name and address of the driver operating the equipment, point of origin, the time and date of departure, the point of final destination, and the authorized carrier's serial number of any identification device affixed to the equipment.
53
s 207.5. Interchange of equipment.—Common carriers of property may by contract, lease, or other arrangement, interchange any equipment defined in § 207.2 of these rules with one or more other common carriers of property, or one of such carriers may receive from another such carrier, any of such equipment, in connection with any through movement of traffic, under the following conditions:
54
(a) Agreement providing for interchange.—The contract, lease, or other arrangement providing for interchange shall specifically describe the equipment to be interchanged; the specific points of interchange; the use to be made of the equipment and the consideration for such use; and shall be signed by the parties to the contract, lease, or other arrangement, or their regular employees or agents duly authorized to act for them, in the execution of such contracts, leases, or other arrangements.
55
(b) Authority of carriers participating in interchange.—The certificates of public convenience and necessity held by the carriers participating in the interchange arrangement must authorize the transportation of the commodities proposed to be transported in the through movement, and service from and to the point where the physical interchange occurs.
56
(c) Driver of interchanged equipment.—Each carrier must assign its own driver to operate the equipment that is proposed to be operated from and to the point or points of interchange and over the route or routes or within the territory authorized in the participating carriers' respective certificates of public convenience and necessity.
57
(d) Through bills of lading.—The traffic transported in interchange service must move on through bills of lading issued by the originating carrier, and the rates charged and revenues collected must be accounted for in the same manner as if there had been no interchange of equipment. Charges for the use of the equipment shall be kept separate and distinct from divisions of the joint rates or the proportions thereof accruing to the carriers by the application of local or proportional rates.
58
(e) Inspection of equipment.—It shall be the duty of the carrier acquiring the use of equipment in interchange to inspect such equipment, or to have it inspected in the manner provided in § 207.4(c) of these rules; and equipment which does not meet the requirements of the safety regulations shall not be operated in the respective services of the interchange carriers until the defects have been corrected.
59
(f) Identification of equipment.—The authorized carriers operating equipment in interchange service under this section shall carry with each vehicle so operated a copy of the contract, lease, or other arrangement while the equipment is being operated in the interchange service.
60
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS concurs, dissenting.
61
I agree with the Court that the Interstate Commerce Act grants the Commission broad implied powers to carry out the general purposes outlined in the law. See United States v. Pennsylvania R. Co., 323 U.S. 612, 616, 65 S.Ct. 471, 473, 89 L.ed. 499. But the Commission is without power to invoke vague implications to defeat the Act's purpose or to override its clearly expressed provisions. This, I think, is what the Commission has done in most of the Commission rules which the Court upholds. In my view the rules run counter to the Act in three important respects:
62
A. The congressionally granted right of motor carriers to choose for themselves whether they would use leased or purchased equipment is practically destoryed by the imposition of burdensome restrictions.
63
B. The exemption from regulation granted carriers of agricultural products by § 203(b) of Part II of the Act is burdened by restrictive rules that substantially take away the advantages Congress intended to confer by the exemption.
64
C. Railroads that operate motor vehicles as a part of the business of common carriage are granted special advantages in violation of the express policy of the Act which requires each method of transportation to be left with its inherent advantages.
65
A. Motor vehicle common carriage had reached an advanced stage when Congress passed the Motor Carrier Act in 1935.1 Early development of the business was along lines that the carriers found to be advantageous. Some carriers owned their vehicles, while others leased them. The Act did not try to disrupt this system, but left motor carriers free to continue to own or lease equipment in accordance with their best financial judgment. And Congress was content to regulate the common or contract carriers themselves; it made no effort whatever to regulate those who owned the vehicles that were leased to the regulated carriers. Congress was thus talking about the acquisition of equipment by lease as well as by purchase when it provided that the Commission should be without power to restrict the right of carriers to add to their equipment or facilities as the development of their business and the demands of the public required.2 While this provision is patently not designed to forbid the Commission from limiting the type of vehicles in the interest of safety,3 the provision just as patently does deprive the Commission of power to forbid the lease and purchase of vehicles which meet the test of safety.
66
The new rules adopted by the full Commission put burdensome restrictions on the power to lease appropriate vehicles, restrictions which, in my view, go beyond the power of the Commission. These burdensome restrictions had been previously rejected by the Commission's Division V, composed of Commissioners particularly responsible for supervision of motor vehicle affairs as distinguished from supervision of railroad affairs. This record makes plain that enforcement of these burdensome rules will produce violent repercussions in the motor carrier industry; many motor carriers will suffer ruinous losses. The business of leasing vehicles for use by common carriers will be curtailed or perhaps even destoyed. The tendency of the rules is thus to eliminate many small business ventures. It may be, as the Commission seems to think, that the Nation's motor-carrier business can be more efficiently accomplished by a few big companies that own all their equipment, than by a large number of small companies that obtain all or part of their equipment by lease. But if that governmental alteration in our business structure is to be ordained, Congress, not the Commission, should do the ordaining.
67
B. The farmers of the Nation have for a long time been largely dependent upon reasonably priced motor transportation to get their produce to market.4 When the Motor Carrier Act was under consideration, there was much apprehension expressed lest regulation deprive farmers of this advantage.5 To meet this feeling, the bill was amended several times and finally was passed with the agricultural exemption set forth in § 203(b). Except as to certain safety requirements § 203(b) exempts from regulation motor vehicles of farmers and farm cooperatives used for farm purposes; the same exemption is also granted to all motor vehicles while being used to carry agricultural commodities. There can be no doubt that the Commission's new rules will drive many of these carriers of farm products out of business and that many others will be compelled to increase their rates. Section 207.4 of the new rules is rather obviously designed to make this exemption much less valuable. It forbids authorized carriers to lease motor trucks except for terms of at lease 30 days, if the trucks are to be operated by owners or employees of owners. The Commission reported that this rule would completely prohibit trip-leasing.6 A very large part of all trip-leasing takes place between regulated carriers and truckers who are exempt because they carry farm products. An illustration can be found in the carriage of Florida citrus fruits. On delivering fruit in northern states the practice of these exempt truckers has been to lease their motor vehicles to regulated carriers for the transportation of goods to Florida. Unless vehicles that bring citrus fruits north can make such arrangements they must go back to Florida empty. 'Empty or partially loaded trucks on return trips may well drive the enterprise to the wall.' United States v. Carolina Freight Carriers Corp., 315 U.S. 475, 488, 62 S.Ct. 722, 729, 86 L.Ed. 971. The Commission's rules make it impossible for these exempt carriers of agricultural products to get the advantage of a lease for a return haul. The result is destruction for a large part of that business.
68
The reason the Commission has adopted a rule so destructive of the agricultural exemption Congress granted is apparent from a colloquy which took place in the District Court. The attorney for the Commission was asked if it was wasteful for a truck to go back to Florida empty. With commendable candor he said: 'It does seem uneconomical in requiring it to go back empty, but they can—The difficulty comes, I think, in letting it come up in the first place.' In other words the 'difficulty comes' because Congress agreed to exempt these farm products. This congressionally created 'difficulty' is being cleared up by the Commission. Its new rules against trip-leasing will force these agriultural carriers to raise their rates high enough to frustrate purposes underlying the agricultural exemption.7
69
C. The Commission has exempted railroads and express companies that carry goods for hire in motor vehicles from all of the regulations except the provisions of § 207.4(c) and (d), which latter two provisions relate to inspection and identification of equipment. It is rather interesting that while the full Commission granted the railroads this amazing exemption, Division V, the Motor Carrier Division of the Commission, refused to allow it. The Commission at the same time refused to exempt from its new rules motor carriers whose operations were shown to be substantially identical with those performed by railroad and express carriers which the Commission left free from the burdens of the rules. Since the railroads and the independent motor carriers are in competition, it is not strange to find the railroads arguing here that while the railroads' exemption should be sustained, the new rules should be applied in all their vigor to the independent motor carriers. I know of no power which the Commission has to allow railroads which engage in the motor carrier business exemptions and preferences which are denied completely motor carriers not owned by railroads.
70
The Commission's rules as a whole fashion broad new national transportation policies different from and in conflict with those Congress adopted after mature consideration. I would reverse the judgments of the District Courts and direct that the rules be set aside as beyond the Commission's authority.
1
Oklahoma-Louisiana Motor Freight Corp. v. United States (D.C.W.D.Okla.); Movers' Conference of America v. United States (D.C.E.D.Mich.); Grayvan Lines, Inc. v. United States (D.C.N.D.Ill.), and Apger v. United States (D.C.N.D.Ohio), respectively.
2
Interstate Commerce Act, §§ 206—209.
3
The Commission's safety regulations are published at 49 CFR, Part 191—196. Section 203(b) also exempts (1) school transportation, (2) taxicabs, (3) hotel service, (4) national park transportation, (4a) farmers, (5) cooperatives, (7) newspapers, (7a) airlines, (8) local service, and (9) 'casual' transportation.
4
See Interstate Commerce Act §§ 209(b), 216(e), 217(b) and 49 CFR, Part 174.
5
It apparently is difficult to generalize about the economic significance of leasing and interchange. A survey made by the Bureau in 1947 disclosed only that about two-thirds of the carriers did not lease. The desirability to each carrier would be affected by many variables, of course, including the number of trucks he owned, the volume and shability of local demand and the extent of his carrying authority.
6
It appears, however, that a number of states control the practice already. Washington, which has filed an intervenor brief here urging affirmance, is notable in limiting trip leases, and in requiring that the driver be an employee of the carrier and that the latter control the vehicle. The relevant provision is cited to us as 'Leasing Rule 40' by the Brief of the Attorney General of that State.
7
The conclusion that highway safety may be impaired rests admittedly on informed speculation rather than statistical certainty. A road check examination conducted by the Bureau did not indicate any significant difference in the number of safety violations between leased and owned vehicles.
8
See General Order O.D.T. 3, revised, §§ 501.5(d), 501.9, 501.10, 501.13, July 14, 1942, 7 Fed.Reg. 5445 et seq., requiring full leasing, interchange and division of revenues; I.C.C. Emergency Order No. M—1, June 11, 1942, §§ 215.101, 215.105, 7 Fed.Reg. 4429; and I.C.C. Emergency Order M—6, November 1, 1945, § 176.10(a), 10 Fed.Reg. 13595.
9
Ex Parte No. MC—43, Lease and Interchange of Vehicles by Motor Carriers, 51 M.C.C. 461.
The change went to the heart of the problem. The examiner had suggested a requirement that the rental be of at least 30 days' duration and that compensation be on a basis other than a division of revenues. Division 5 rejected both provisions, recognizing that they would in effect abolish trip leasing.
10
The Act as originally drafted included, as a definition of carriers, all engaged in transportation 'whether directly or by a lease'. § 203(a)(14), (15), 49 Stat. 544, 545. The 'added language (was) intended to check evasion of the act by bringing within its terms such transportation operations as are performed through the leasing of motor vehicles or other similar arrangements which may constitute either common or contract carriage, according to the particular nature of the arrangements. The language inserted will enable the Commission to strike through such evasions where the facts warrant it.' 79 Cong.Rec. 5651. The terminology was stricken by the Transportation Act of 1940, 54 Stat. 898, 920, which, however, introduced no qualification and which, as we have indicated, was merely '(f)or purposes of clarity'. Thomson v. United States, 321 U.S. 19, 23, 64 S.Ct. 392, 394, 88 L.Ed. 513. See 86 Cong.Rec. 11546.
11
Regulation of Transportation Agencies, S.Doc.No.152, 73d Cong., 2d Sess. 14—15, 22—35, 226; 79 Cong.Rec. 12196, 12209; Hearings, Senate Committee on Interstate Commerce, on S. 1629, 74th Cong., 1st Sess., Part I, 78—80, 404—405, 410—411.
12
79 Cong.Rec. 12207—12211; 12222—12225.
13
See Footnote 8, supra.
14
Dixie Ohio Express Co. Common Carrier Application, 17 M.C.C. 735; Greyvan Lines, Inc. Common Carrier Application, 32 M.C.C. 719. See, however, I.C.C. Administrative Ruling No. 4, August 19, 1936, which represents an early effort on the part of the Commission to bring leased equipment under the control of the carriers for purposes of the Act. This was apparently abandoned after this Court's decisions in United States v. N.E. Rosenblum Truck Lines, Inc., 315 U.S. 50, 62 S.Ct. 445, 86 L.Ed. 671, and Thomson v. United States, 321 U.S. 19, 64 S.Ct. 392, 88 L.Ed. 513.
15
'§ 208. (a) Any certificate issued under section 206 or 207 shall specify the service to be rendered * * *: Provided, however, That no terms, conditions or limitations shall restrict the right of the carrier to add to his or its equipment and facilities over the routes, between the termini, or within the territory specified in the certificate, as the development of the business and the demands of the public shall require.'
§ 209. (b) * * * The Commission shall specify in the permit the business of the contract carrier covered thereby and the scope thereof * * * Provided, however, That no terms, conditions, or limitations shall restrict the right of the carrier to substitute or add contracts within the scope of the permit, or to add to his or its equipment and facilities, within the scope of the permit, as the development of the business and the demands of the public may require.'
16
Likewise exempted are 'motor vehicles controlled and operated by any farmer when used in the transportation of his agricultural commodities and products thereof, or in the transportation of supplies to his farm'. § 203(b) (4a).
17
The National Transportation Policy, 49 U.S.C., preceding § 1, 49 U.S.C.A. preceding § 1, specifically refers to 'fair and impartial regulation of all modes of transportation subject to the provisions of this Act, so administered as to recognize and preserve the inherent advantages of each.'
18
Section 4 of the Administrative Procedure Act sets out only the following applicable requirements:
'(a) Notice.—General notice of proposed rule making shall be published in the Federal Register (unless all persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law) and shall include (1) a statement of the time, place, and nature of public rule making proceedings; (2) reference to the authority under which the rule is proposed; and (3) either the terms or substance of the proposed rule or a description of the subjects and issues involved. * * *
'(b) Procedures.—After notice required by this section, the agency shall afford interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity to present the same orally in any manner; and, after consideration of all relevant matter presented, the agency shall incorporate in any rules adopted a concise general statement of their basis and purpose.'
There is no question but that the Federal Register notice and participation requirements were satisfied. See 73 S.Ct. 313, supra.
19
We have already noted the Motor Carrier Act itself distinguishes between the scope of a hearing required in rate proceedings and those in relation to general rule-making under § 204(a)(6).
20
Compare the principles applicable to rate-making with what we have said about the Fifth Amendment in the related field of wage and hour laws under the commerce power, United States v. Darby, 312 U.S. 100, 125, 657, 61 S.Ct. 451, 462, 85 L.Ed. 609. This Court has pointed out many times that the exercise of the federal commerce power is not dependent on its maintenance of the economic status quo; the Fifth Amendment is no protection against a congressional scheme of business regulation otherwise valid, merely because it disturbs the profitability or methods of the interstate concerns affected. Labor Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 43—45, 57 S.Ct. 615, 627—628, 81 L.Ed. 893; Currin v. Wallace, 306 U.S. 1, 13—15, 59 S.Ct. 379, 386, 83 L.Ed. 441; United States v. Rock Royal Co-operative, Inc., 307 U.S. 533, 572—573, 59 S.Ct. 993, 1012—1013, 83 L.Ed. 1446; North American Co. v. Securities & Exchange Commission, 327 U.S. 686, 707—710, 66 S.Ct. 785, 797—798, 90 L.Ed. 945; American Power & Light Co. v. Securities & Exchange Commission, 329 U.S. 90, 106 108, 67 S.Ct. 133, 142—143, 91 L.Ed. 103.
1
49 Stat. 543, as amended, 54 Stat. 919, 49 U.S.C. § 301, 49 U.S.C.A. § 301.
2
This denial of power to the Commission appears in § 208(a) and 209(b) of Part II of the Act. 49 U.S.C. §§ 308(a) and 309(b), 49 U.S.C.A. §§ 308(a), 309(b).
3
Crescent Express Lines v. United States, 320 U.S. 401, 408 409, 64 S.Ct. 167, 170—171, 88 L.Ed. 127.
4
For example, in 1950:
PERCENTAGES OF SELECTED FARM PRODUCTS TRANSPORTED TO PRINCIPAL MARKETS IN TRUCKS.
Percent
Percent
Hogs......... 79. Grape Fruit 43
Cattle....... 76. Oranges 33
Calves....... 78. Apples 64
Sheep and Lambs. 44. Tomatoes 60
Shell Eggs... 93. Potatoes 37
Dressed Poultry. 76. Lettuce 41
Live Poultry. 99. Milk. 79
Transportation of Selected Agricultural Commodities to Leading Markets by Rail and Motor Truck, 1939—1950, United States Department of Agriculture, Bureau of Agricultural Economics (June 1951), Table 1, p. 10.
5
For illustration, Congressman Walter Pierce of Oregon said, 'Mr. Chairman, I have watched the debate very closely. I wonder why this bill? I am a farmer, living 300 miles from tidewater. I raise wheat and stock. The only relief I have ever seen in my 40 years on that farm from the terrific confiscatory railroad freight rates was when the trucks came.
'The camel is certainly getting his nose into the tent, and this means the death of the motor transportation which the farmer has had and which has been the only relief that has come to him from the previous excessive railroad rates.' 79 Cong.Rec. 12216, 12217; see also 12197—12198.
6
Trip leases can be made by motor carriers specifically exempted from the rules by the Commission—railroad motor carriers, express company motor carriers, and the Allied Van Lines.
7
This statutory agricultural exemption reflects a congressional belief that '* * * it would be better for the Congress to decide what should be exempted rather than to leave it in the hands of the Commission that might nullify the entire intentions of Congress * * *.' 79 Cong.Rec. 12225.
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